Hands Around the World
by Grace R. Kennedy
The Hague Adoption Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (Hague Adoption Convention) is an international agreement to safeguard intercountry adoptions. Concluded on May 29, 1993, in The Hague, Netherlands, the Convention establishes international standards of practices for intercountry adoptions.
With the passage and enactment of the Hague Adoption Convention, adoptions from countries that are signatory to the Hague Convention have become highly regulated. Pursuant to the Hague Adoption Convention, adoption service providers are required to become accredited to provide adoption services to adoptive parents. This means that the adoption professionals they employ receive training and that their adoption practices and procedures are subject to review by a government-appointed body.
The Hague Adoption Convention has been enacted by almost 90 countries around the world. Signatories include just about every “first world country” there is, most of Latin America, and a chunk of Asia. But the countries with bigger problems than child trafficking shied away from signing on to a convention that they were either too poor or too distracted to enforce.
The United States can’t do much about what another country does with its most vulnerable citizens, but we recognized that we could do a better job safeguarding our part in the international adoption process. In an attempt to bolster our efforts to protect intercountry adoptees, the United States recently passed The Universal Accreditation Act of 2012 (UAA).
The UAA extends the safeguards provided by Hague accreditation to orphans born in countries that are not signatories to the Hague Adoption Convention, their adoptive parents, and birth parents. This is accomplished by ensuring that adoption service providers are all held to the same federal standards. Safeguards under the UAA are universal, because the UAA applies Hague Adoption Convention-compatible standards to both Hague Adoption Convention and orphan cases.
Before the Intercountry Adoption Act of 2000 (IAA), adoption service providers in intercountry adoption were exclusively regulated by state law. State licensing authorities in the 50 states have different standards; some had few specific standards governing intercountry adoptions, especially relating to agencies’ conduct abroad. Many state licensing authorities were unable to hold service providers accountable for illicit practices in intercountry adoption cases. State laws often did not apply to the activities of licensed agencies outside the United States, and states often lacked the resources to investigate and take action against agencies involved in such cases.
The UAA provides for uniform standards and accountability for service provider conduct, regardless of whether the case falls under the Hague Adoption Convention or the orphan process. The IAA and the regulations implementing the Hague Adoption Convention protect against illicit activities and practices of the past that threatened the best interests of children.
Accreditation of adoption service providers ensures ongoing monitoring and oversight of adoption service providers to verify their compliance with federal accreditation standards. This holds accredited providers accountable for failure to be in substantial compliance with the standards.
Key protections include:
- Children may not be obtained for adoption through sale, exploitation, abduction, and/or trafficking.
- Parents receive training in advance of the adoption to understand what to expect when raising an adopted child and prepare them for some of the challenges.
- The agency or person must ensure that intercountry adoptions take place in the best interests of children.
- Fees must be transparent for services performed both in the United States and abroad and may not result in improper gain for the service provider.
- U.S. Department of State-appointed accrediting entities monitor and assess accredited agency compliance with federal standards.
- Accrediting entities ensure accountability when accredited agencies do not comply with the standards by taking appropriate adverse actions against them and may suspend or cancel their accreditation.
- Accrediting entities ensure that accredited agency personnel are qualified and appropriately trained and provide adoption services in an ethical manner.
- Accredited agencies must respond to complaints about their services and activities and may not retaliate against clients who complain.
Here is the text of the Act with all of the “legalese” deleted to make for easier reading:
The Intercountry Adoption Act of 2000 shall apply to any person offering or providing adoption services. Accrediting entities shall have duties, responsibilities, and authorities with respect to a person offering or providing such adoption services, irrespective of whether such services are offered or provided in connection with a Convention adoption. The provisions of this section shall take effect 18 months after the date of the enactment of this Act.
What does this mean? In a nutshell, anybody providing any adoption services relating to an intercountry adoption from a non-convention country on or after July 14, 2014, will have to be accredited.
The six adoption services are:
- Identifying a child for adoption and arranging an adoption;
- Securing the necessary consent to termination of parental rights and to adoption;
- Performing a background study on a child or a home study on a prospective adoptive parent(s), and reporting on such a study;
- Making non-judicial determinations of the best interests of a child and the appropriateness of an adoptive placement for the child;
- Monitoring a case after a child has been placed with prospective adoptive parent(s) until final adoption;
- When necessary because of a disruption before final adoption, assuming custody and providing (including facilitating the provision of) child care or any other social service pending an alternative placement.
But what about cases that have been partially completed before the 2014 deadline? Here’s what you need to know:
- If the United States Citizenship and Immigration Service (USCIS) made a decision on either Form I-600A or Form I-600 before July 14, 2014, then no accreditation is required for adoption services that are provided before July 14, 2014.
- Accreditation is also not required when the prospective adoptive parents have filed either Form I-600A or Form I-600 before July 13, 2013, even though USCIS does not make a decision until after July 14, 2014.
- If the adoptive parent has made an “appropriate application” to a foreign adoption authority before July 13, 2013, then accreditation is not required.
- If form I-600A or Form I-600 was filed after July 13, 2013, then accreditation is not required for adoption services rendered before July 14, 2014, but will be required for adoption services rendered after July 14, 2014.
- If the prospective adoptive parent files Form I-600A or Form I-600 on or after July 14, 2014, then accreditation is required for all adoption services rendered in connection with this adoption.
What about private or independent adoptions? The State Department gives the following guidance in response to the question, “Can I complete an intercountry adoption doing an independent adoption in which I do the adoption work myself without the help of an accredited or approved provider?”
Answer: “No. An accredited primary provider is required in every intercountry adoption case, unless a public domestic authority is providing all of the adoption services.” However, it goes on to state in a somewhat labyrinthine manner that if the adoptive parent is acting alone, then the adoptive parent is exempt from obtaining accreditation. So essentially, according to the State Department website, you cannot complete an independent adoption on your own because an accredited provider is needed in all intercountry adoptions, unless you are completing the adoption independently, in which case, it’s fine. You do not need accreditation. Huh?!
I think that what they meant to say is that any adoption services must be provided by an accredited provider (after the July 2014 cutoff date) and that pre-placement training and post placement supervision may be required for visa issuance.
I called the State Department directly to get more clarification on this issue and was told that any adoption services rendered in connection with an independent adoption would need to be provided by an accredited provider. So, the home study will need to be done by an accredited provider or someone working under the supervision of an accredited provider. But will a child be eligible to have a visa issued if that child was not placed by an adoption service provider? It looks as if the child will still be eligible for a visa, but be prepared for the home study provider to have extra added responsibility to ensure that the placement is properly documented, that the local law has been complied with, and that post placement work is completed.
As an aside, I also asked the State Department how a social worker in the U.S. could ensure that local laws had been complied with in a Pakistani slum or a remote Afghan province and was told, “We don’t know that yet.”
Do I think that the UAA signifies the end of private adoptions? No, I don’t. The Immigration and Nationality Act and corresponding regulations specifically envisage and provide for situations in which children are orphaned but no agency or entity ever has custody of them. Children who are deserted (the biological parents refuse to parent them) or whose parents have disappeared are considered orphans; so too are the children of sole and surviving parents. Congress intended that United States citizens should be able to adopt orphans from overseas and emigrate them as immediate relatives. If USCIS suddenly requires that an accredited child placing entity be involved in every independent or private adoption, then we are excluding from our definition of visa-eligible orphans an entire class of children that Congress explicitly and purposely intended to include in this class of children. Furthermore, existing regulations specifically prohibit children being placed in the custody of a child placing entity in anticipation of a particular adoption. It would seem counter-intuitive to now require an accredited adoption service provider to make a placement in all orphan adoption cases.
The UAA will provide a sorely needed set of checks and balances in intercountry adoption cases from non-Hague countries. Adoption professionals across the board will welcome the additional safeguards it provides to both the adoptees and prospective adoptive parents. Not only will adoptive parents be required to receive appropriate training to ensure that they will be prepared for their adoption journey, but they will also be protected from unscrupulous providers here and overseas. Adoption services will be provided in a clear and transparent manner and will be monitored by a central government authority. Perhaps most importantly, the UAA will protect against illicit activities and practices that threatened the best interests of children. All of this moves us closer to our goal of providing appropriate families for children from around the world.
Grace R. Kennedy holds a Bachelor of Laws degree from the National University of Ireland, Dublin and a Master of Laws degree from Emory University School of Law. She has extensive experience in immigration-related adoption issues. Ms. Kennedy is one of a few attorneys in the United States who routinely handles complex adoption issues involving orphans from predominantly Muslim countries, including Pakistan and Afghanistan. She has researched issues present in intercountry adoption cases and is extremely knowledgeable on all facets of the intercountry adoption process.