Hague Convention Becomes U.S. Law

An Explanation of the New Law and Steps Required for Implementation

In the opinion of many, the most important development in the history of intercountry adoption is the creation of the 1993 Hague Convention on Intercountry Adoption, a treaty designed to reduce the incidence of trafficking in children and to expedite legal adoption of children across national borders. The Convention was the result of work by several dozen nations at The Hague, the capital of the Netherlands, meeting under the auspices of the Hague Conference on Private International Law (HCPIL). HCPIL has an excellent web site, www.hcch.net, which has hundreds of pages of useful information relating to the Convention.

Now that the United States Congress has passed legislation to ratify and implement the Convention, and the legislation was signed by President Clinton on Oct. 6, 2000, expectations are that most countries will take those actions as a signal that the Convention will be a benchmark for most countries, even those that do not formally ratify the treaty.

Background

Intercountry adoption usually applies to a child who is not related to the couple or single person who is adopting. By adopting, that child is made a legal member of a family whose usual and habitual residence is a country other than the country of the child's birth.

Intercountry adoption is not a new phenomenon. The first wave of such adoptions took place at the end of the Second World War, with children being adopted by citizens of the U.S. and other countries from Germany, Italy, Japan and other countries directly impacted by the hostilities. For the U.S., the second wave began with the Korean conflict, when children who were orphaned or who were born to women as a result of nonmarital relations, usually with U.S. military personnel, were adopted. The third great wave took place as a result of the Vietnam war; as in Korea, orphans and children born out of wedlock were adopted. Although adoptions took place from dozens of other countries during these years, the numbers were minimal and received little notice until the 1990s, when substantial numbers of children from countries such as Romania, the former Soviet Union, and China began to be adopted internationally.

Although there are not reliable worldwide data, it is generally accepted that the U.S. adopts more children internationally than all other countries combined. Informed sources at the U.S. Department of State estimate that the number for the Fiscal Year which ended at the end of September, 2000, will exceed 17,300 children, a record high.

Intercountry adoption has been proved to be a wonderful resource for children without families. For instance, the research conducted by the Search Institute, a Minnesota think tank, demonstrated that such children thrive. Longitudinal work by Marietta Spencer, MSW, tracking the adjustment of children adopted internationally through the Children's Home Society of Minnesota, confirms the Search Institute findings.

Most of the children who are adopted by U.S. citizens from other countries are of ethnic or racial backgrounds that differ from their adoptive parents. Fortunately, the apartheid that so often exists within the U.S. public foster care system and which dictates that parents who are "white" or Caucasian may not adopt across racial or ethnic lines is not a barrier in intercountry adoption.

Enacting Legislation

Despite the acknowledged success of intercountry adoption, the rare instances of confirmed abuses - mainly involving children whose biological parents did not legally sign papers allowing their children to be adopted or the payment of bribes - led to calls, especially in the early 1980s, for corrective action on the part of the international community. There were calls to essentially ban or severely restrict intercountry adoption. Others suggested that the system could be cleaned up and made to work better rather than being junked.

The Hague Convention on Intercountry Adoption (THC) is the response to those challenges. Since THC is a treaty, it must be ratified by each nation that wishes to operate under its framework. In some countries, this can be done through an administrative action, but in the U.S., a treaty requires the advice and consent of the U.S. Senate and, in most instances, including the THC, implementing legislation.

Implementing legislation describes precisely how the U.S. government is to put any treaty into place, including what federal agencies are going to be assigned responsibilities under the treaty.

The U.S. has decided to give the lead responsibility to the Department of State, with the Immigration and Naturalization Service continuing to play a role with home studies and other immigration-related matters. The U.S. Department of Health and Human Services, which has had no real role in intercountry adoption by U.S. citizens, is purposefully excluded from having any responsibility in the implementing legislation.

The legislative process effectively began with the March 3, 1999 introduction in the Senate of S. 682, implementing legislation, which had as its lead sponsor the Chairman of the Senate Foreign Relations Committee, Jesse Helms (R-NC). As the person who is in a position to advance or block treaties, Chairman Helms' sponsorship of the implementing legislation was a very positive and critically important signal of his willingness to see the treaty ratified, so long as the implementing legislation was reasonably close to something he could support. For bipartisan balance, Mary Landrieu (D-LA) was the original Senate co-sponsor.

Overcoming Hurdles

S. 682 was controversial for several reasons. As a result, action was stalled in the Congress for months as ideological and professional differences were debated by the staff members of key Members of Congress.

Two issues were not settled after months of work. Sen. Sam Brownback (R-KS), a member of the Foreign Relations Committee, did not see the need for what he thought was simply new bureaucratic barriers to intercountry adoption by U.S. citizens. Sen. Brownback wanted an alternative to the Council on Accreditation, the obvious choice of many organizations as the body that would approve U.S. agencies to work under the Convention. Sen. Brownback wanted a guarantee of workable, less expensive and less time-consuming options for smaller agencies. Sen. Brownback was concerned that, lacking such options, agencies would either have to substantially raise the fees charged adoptive parents or close down. Sen. Brownback obtained a solution he could accept. The solution in the law is to offer, among other alternatives, the opportunity for state licensing bodies to take on accreditation duties for agencies wishing to work under the Convention. In addition, a phase-in period giving agencies placing between 50 and 99 children an extra year to be accredited and smaller agencies two extra years to be accredited was included in the implementing legislation.

Promiscuous Lifestyles

Rep. Chris Smith (R-NJ), a member of the House Committee on International Relations and Chairman of its Subcommittee on Operations and Human Rights, raised a different issue. The issue appears to have come up primarily because of a high-profile, horrifying case involving a single male adoptive parent of 28 children who was accused of sexually molesting several of his children. The alleged abuse was widely reported in the nearby Pennsylvania media. The case never went to court because, on the day before, the alleged perpetrator committed suicide. Because of his stated concerns about adoptions by people with promiscuous lifestyles or other problematic behaviors that might make them inappropriate adoptive parents, Rep. Chris Smith wanted honest and comprehensive home studies to be part of the Convention process. His view was that hopefully this would not only prevent any repetition of the sort of sexual abuse that had been alleged but, more to the point regarding international adoptions, prevent a shut-down by countries such as China, which have official, published policies prohibiting adoptions by single persons who are not heterosexual [see regulations under Article 7, Paragraph (8)].

Rep. Chris Smith ultimately obtained a solution he could accept. The solution was to require the collection and sharing of information about each country's policies regarding prospective international adoptive placements.

In addition, there is to be an effort to ensure that U.S. agencies and others comply with the requirements set by the countries for those who want to adopt their children. Rep. Chris Smith's activism does not affect the ability of persons other than heterosexuals to adopt U.S. children. The U.S., whether one considers domestic adoptions or adoptions by persons who are citizens of other countries, will retain its state-by-state policies regarding adoption. With the exception of the states of Florida, Mississippi and Utah, every jurisdiction allows unmarried heterosexual couples and single persons who are unmarried and not heterosexual to adopt. Arguably, the U.S. is the world leader in allowing non-heterosexuals to adopt, outpacing even countries like The Netherlands, which allow non-heterosexuals to legally formalize their relationships but which does not allow non-heterosexuals to adopt internationally.

Approved, Voted, and Signed into Law

With Sen. Brownback and Rep. Chris Smith on board, the decks were cleared except for one remaining issue which was brought up rather late in the discussions, relative adoptions. There was a desire by four Senators, Spencer Abraham (R-MI), Joseph Biden, the ranking Minority member of the Committee on Foreign Relations (D-DE), Orrin Hatch, the Chairman of the Committee on Judiciary (R-UT) and Ted Kennedy, member of Judiciary (D-MA), to make it easier for U.S. citizens to adopt children from other countries who were related to them. Ultimately, Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Subcommittee on Immigration, as well as Chairman of the full Judiciary Committee, Henry Hyde (R-IL), and others compromised to solve that problem.

As the controversies were settled, the House did its final sign-off on Sept. 18, and the Senate followed with its final approval on Sept. 20. Because identical bills had been approved, the bill immediately went to President Clinton. President Clinton scheduled a signing ceremony in the Oval Office and on Oct. 6, the legislation became Public Law 106-279. The Convention itself, as passed by the Senate, is Treaty Document No. 105-1.

With the legislation signed into law, the next step is for draft regulations to be prepared and published in the Federal Register for public comment. The law requires the U.S. Department of State to issue regulations within 90 days. That process will be very formal and entirely open. It will also include, according to sources at the Department of State, at least one public meeting which will be announced in the Federal Register.

Still to be Worked Out

There is no certainty that the regulations will be finalized any time soon. With a law that has so much controversial history and potential, it could be many months before final regulations which meet the approval of the public and of Congress are published. Most observers, including officials at the U.S. Department of State, estimate that it will be about two years before the regulations are in place, the accreditation system put in place by accrediting bodies, and the necessary accreditations received by non-profit agencies.

A consideration that has not received any attention is the role of attorneys and others in the new Convention process. Although the Convention allows nations to specify that attorneys may be "approved" to carry out certain functions, the Convention also allows nations to bar any adoption providers except agencies from participating. For decades, countries like the Republic of Korea have banned all but agencies. Many other countries have similar policies. Similarly, a few U.S. jurisdictions also prevent attorneys or any other adoption providers other than agencies from doing adoptive placements. A decision will need to be made about the U.S. position on attorney and other non-agency placements under the Convention.

It is possible, for instance, that the U.S. would decide to bar all non-U.S. adoption providers except agencies from arranging intercountry adoptions of U.S. children. It is unlikely, given the power of attorneys and the fact that influential adoptive parent groups want as many options as possible available to them, that the U.S. would declare that only U.S. agencies will be allowed to help U.S. citizens with the adoption of children from other countries.

Until these and other questions are settled and the entire system is ready to function, the U.S. will not take the step of formally "depositing" the "instrument of ratification" at The Hague. Following the receipt of that document, it will be another three months before the Convention actually goes into effect for the U.S. Even then, the Convention will only impact those adoptions which take place between two countries that have the Convention fully in place. At this time, for instance, the country that is the largest adoption partner of the U.S., China, has not ratified or implemented the Convention. There are signs that China will move to put the Convention in place, just as the Russian Federation, the U.S.'s second-largest adoption partner, has recently done.

The most reliable web sites for information about the Convention, in addition to The Hague Conference on Private International Law, are the web sites of the U.S. Department of State and the National Council For Adoption. At the present time, there are so many unanswered questions about regulatory and other matters that need to be addressed that little is certain other than the texts of the treaty and the implementing legislation, both of which can be obtained by going to THOMAS at the web site of the Library of Congress.

© 2000