I’ve been using the words “Hague Convention” since I started blogging over a month ago. It preoccupies and on some level terrifies a lot of us, especially people presently adopting from Guatemala.

If you are new to the adoption world you may appreciate this explanation of the Hague
Convention; some of us “old timers” may want a quick “refresher” course on the "Hague Mess," as I prefer to call it.

So here goes. The Hague Convention is a shortened name for the “Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption.” Created by the Hague Conference on Private International Law in May of 1993, this is a legal document intended to establish safeguards for adopted children, birth families and adoptive families, and systems for countries to protect all of the aforementioned, by carrying out adoptions in a clear and ethical manner. Countries who have ratified or acceded to the Hague Convention on Intercountry Adoptions (HCICA) implement adoption procedures that can be identified and recognized by any other country that has adopted this convention.

Some of the standards set forth by the HCICA are:
1. Standardization of intercountry adoption procedures
2. Establishment of a Central Authority to oversee the adoption process in each country
3. Certification of Providers (i.e. agencies) by this Central Authority in order to
work in ICA.

Hague Countries are the only ones that have to abide by these procedures. For example, if country A signed and ratified the HCICA, but country B did not, then Country B does not have to follow the laws established for Hague Convention countries, and basically is not affected by the treaty at all. However, adoptions can take place between these two countries.

Is the US a Hague Country?

Although the US helped draft the HCICA and signed it in 1994, they have not ratified the treaty yet. When all the internal US procedures are in place and implementing legislation is complete, the HCICA will go into effect.

The DOS (Department of State) has been chosen to be the Central Authority and has developed regulations that cover:
1. Accredidation of adoption agencies
2. Liability
3. Service standards
4. Other aspects of the adoption process

When Will the US Officially Become A Hague Country?

It was expected to happen at the end of 2007, but RUMORS are that it will be closer to the spring of 2008. Remember, these are rumors only; no one knows for sure.

What is the problem between Guatemala and the US regarding the Hague Convention?

In 2002, the President of Guatemala sent documents to the Hague Convention “acceding” to the Convention with Guatemalan Congressional approval. The Attorney General’s Office (the infamous PGN) was chosen as the Central Authority. However, this was all done hastily and without the creation of an implementing legislation. Therefore, to date, there are no procedures in place to be HCICA compliant.

An aside…

Many a reporter or anti-adoption person has interpreted the fact that since Guatemala is not HCICA compliant, all or most adoptions from Guatemala are corrupt, and there is little or no government oversight or review. This couldn’t be any farther from the truth.

Each adoption must:
1. Get Pre-approval from the US Embassy AFTER a DNA sample is taken from the birth mother and child to verify that the birthmother is in fact the mother of the child (and not someone who has stolen the child). The sample is sent to the US for testing.
2. If the child is in an orphanage, a COA (certificate of abandonment) must be produced. This is a very complicated and long process.
3. Each adoption must go through Guatemalan Family Court, where all the documents are examined by a social worker. Here the birth mother is interviewed, and if she is a minor, her parents must be present. There is actually a special court for minors.
4. After exiting Family Court, and with Pre-Approval from the US Embassy, the adoption documents now are submitted to PGN (Attorney General’s Office), where they are scrutinized by a lawyer. Minor birth mothers (with parents) must submit to a second interview here, and other birth mothers can also be called in for an interview if the lawyers suspect something is not in order.
5. After exiting PGN, the birth mother must sign off on the adoption declaration for the final time (this is the fourth time she has signed off), and if she is a minor, her parents must sign also.
6. A new birth certificate is procured from the child’s place of birth.
7. A physical examination by a US Embassy doctor must be performed on the child.
8. A Guatemalan passport must be obtained for the child.
9. All the adoption documents are then submitted to the US Embassy for final scrutiny. When the embassy officials are satisfied that the adoption is “kosher,” a Pink Slip is given to the parents (through the lawyer and agency) with the date for an appointment to come to the embassy.
10. Parents go the US Embassy and are interviewed (usually briefly) at two windows. They are told to come back the next day for their child’s visa, and given a packet to submit to US immigration at the point of entry into the US. This packet must remain sealed. The parents are also given a packet (from their lawyer) with information about the birth mother and the Family Court interview.

Back to Guatemala’s problems with the Hague Convention

A major legal problem also occurred in 2002 in Guatemala. The Guatemalan constitution does not permit accession to treaties, only ratification. The only countries that can ratify the Hague Convention are those countries that helped draft it (such as the US). Guatemala did not; therefore they could only “accede” to the convention. Therefore, in August 2003 the accession to The Hague Convention was declared unconstitutional by the Guatemalan Constitutional Court.

To make things even more complicated, under international law Guatemala is considered a Hague country by the Hague Conference and by other countries, including the US.

The Guatemalan government and the Guatemalan Constitutional Court have been working on the complex legal issues involved, in an attempt to be compliant with the HCICA by the end of 2007.

Once the HCICA is ratified by the US, Guatemala will be treated as a Hague country, and if Guatemala does not have a HCICA compliant adoption system, adoptions from Guatemala to the US will stop until they are compliant.

If you have any questions about The Hague, please post them in comments, and I’ll make sure to respond.

For more information on the Hague convention:
1. Ethica

2. Adoption.com

For a list of Hague Countries, click here