The Abandoned Children of Guatemala

Canadians are currently prevented from adopting children in Guatemala (the reasons are discussed below), however, children are languishing in difficult conditions in Guatemalan orphanages. The purpose of this article is to ask the Canadian authorities to permit Canadians to adopt abandoned children living in orphanages in Guatemala.

There has been so much focus on adopting newborn children within Guatemala that abandoned or apprehended children have been all but forgotten. I recently visited these children and it was obvious to me that they need to grow up in loving and safe families. Very little financial support is available from the Guatemalan government to run these orphanages; the country simply does not have the financial reserves to do it. 90% of the orphanages rely on donations to survive.

Since Canada allows adoptions from orphanages in almost every other country in the world, what happened to cause this prohibition?

The Background

On April 1, 1997 Canada joined the Hague Convention on Intercountry Adoption (the Convention). It applies to international adoptions whenever both the sending and receiving countries have put the Convention in force in their countries. In March 2003, Guatemala acceded to the Convention and purported to bring it into force in that country.

A Guatemalan lawyer working the field of private adoption then led a constitutional challenge to the implementation of the Convention in that country. On August 13, 2003 the Guatemala Constitutional Court upheld the challenge saying that the country was not permitted to accede to a Convention. On this technical legal interpretation, the Convention's implementation was deemed unconstitutional. (This was an odd decision since Guatemala had previously acceded to other international conventions). However, the President of Guatemala did not officially withdraw the instruments of accession. As a result, internally, Guatemala is not considered a party to the Convention and under international law it is considered to be a party to the Convention.

One of the features of the Convention is that any member country may file an objection as to how another country has implemented the Convention. Five countries have filed such an objection (Canada, Germany, Netherlands, Spain and Britain). The result is that the Convention is considered not to be in force between these countries and Guatemala. The 10 Provinces in Canada banned adoptions from Guatemala. At least one country filing an objection under the Convention has taken a different approach. Great Britain continues to complete adoptions in Guatemala despite having filed an objection.

At the present time there are 400 adoptions per month from Guatemala to the USA. This astounding monthly figure is greater that the total of all adoptions from Guatemala to Canada since 1996. It is also seven times higher than the combined monthly total from Guatemala to the rest of the world.

The United States will bring the Convention into force early in 2008. The U.S. Central Authority has already announced that adoptions from Guatemala will stop at that point unless Guatemala has provided a "Hague compliant process". The U.S. Government's ongoing concern with the adoption process in Guatemala results from the lack of government oversight necessary to protect children and families. The U.S. has denied orphan petitions due to unlawful practices in Guatemala. These include cases where an imposter purports to be the biological mother of the child and where the biological parents have been deceived and there has been no true relinquishment of parental rights. However, these concerns do not apply to abandoned children in orphanages.

What Will Happen Now?

It is an understatement to say that the future of intercountry adoption in Guatemala is uncertain. There is a power struggle going on in the country between executive branch of Government (led by the First Lady of Guatemala), the Courts, the lawmakers and the adoption attorneys. There have been many new developments over the past five months that make it hopeful that a positive resolution will be found.

1 A Hague Compliant Process is Discussed

At a meeting held in Guatemala City in February 2007 an attempt was made to find a Hague compliant process that will satisfy the U.S. Central Authority. It may be some time before we know if these efforts have been successful. If they are successful then from Canada's perspective it could either

(i) Agree with the U.S.A. that the process is Hague compliant, withdraw its formal objection and permit adoptions from Guatemala to Canada; or
(ii) Disagree with the U.S.A. that a new process is Hague compliant, and continue to prohibit adoptions from Guatemala (in that case the current situation would continue where U.S. residents can adopt from Guatemala and Canadians cannot).

NOTE: At the present time NO Hague compliant attorney based process has been clearly developed, nor is there any assurance that the U.S.A. Central Authority would deem it to be Hague compliant.

2 Change in the Constitutional Court Decision

In March, 2007 the Guatemalan Constitutional Court granted the President of Guatemala the authority to overturn Guatemala's accession to the Vienna Convention...in essence clearing the way for implementation of the Hague Convention in Guatemala.

3 The "Manual Of Good Practices" is put in place

On March 1, 2007 the Vice President of Guatemala announced new mandatory protocols for all adoptions in the country (the "Protocolo"). The effect of these protocols would be to stop attorney based private adoptions. Only children declared legally abandoned could then be adopted. Many of the Convention principles would be implemented as part of the Protocolo.

4 The Position of the U.S. Central Authority

On March 14, 2007 the Hague implementation staff of the Central Authority of the U.S. State department posted new rules about Guatemalan adoptions and recommended that Americans not proceed further with adoptions from that country. It also posted a series of FAQ, which has provoked considerable controversy in the USA. See http://www.state.gov. As a result several US adoption agencies have suspended Guatemalan adoptions while others have reaffirmed their intention to continue.

5 Guatemala's Proposed Legislation

There are three bills before the Guatemalan Congress which are trying to implement the Convention

(i) The Guatemalan legislature originally considered a law which would have over-ruled the Constitutional Court and brought the Convention into force in Guatemala. This Bill is stranded at third reading and is not likely to be passed. (Bill 3217 is also known as the "Ortega Bill" and sometimes as the "Unicef Bill ")
(ii) In May 2007 Guatemala passed a new law reaffirming the Convention and setting January 1, 2008 as the date to implement it in Guatemala. This was a huge step and sets the stage for what is to come next.
(iii) In March, 2007 the Congressman's Bill (No. 3635) was introduced to the Guatemalan Congress with the intent of reforming the adoption process. While there has been considerable criticism of this bill, it has now become the focus of efforts to create a Hague compliant process before January 1, 2008. The hope is to introduce amendments that will meet the Hague standards. (If this doesn't work then presumably a fourth bill will be introduced.)

For a description of some of the steps that Guatemala must take in order to meet its obligations under the Convention, please see the chart entitled "US Law, the Hague Adoption Convention and Guatemala" dated May 16, 2007 at http://www.travel.state.gov/family/adoption/convention/convention_3239.html

6 The Hague Bureau Steps In

Upon the request of the Guatemalan Government, the Permanent Bureau of the Hague Conference and several Convention countries, including the United States, are engaged in a cooperative effort to provide Guatemala with technical assistance on the Convention. The result of this effort is likely to be a Hague compliant process to be enshrined in legislation.

Recommendation

It is not yet clear who will win the power struggle in Guatemala, but while it plays out, the abandoned children grow older in orphanages. Who is thinking about these abandoned children? Who will speak for them? Is it in their best interest to grow up in orphanages?

The abandoned children in Guatemala's orphanages have been twice abandoned: First by their parents, or if apprehended from their parents, by the government and second, increasingly by the world.

There is clearly an impetus in the Guatemalan government to have a Hague compliant process, and there is now an opening to develop such a process for the abandoned Guatemalan orphans. I recommend that the Government of Canada, and the Provinces follow the improvements in Guatemala with a view to allowing Canadians to adopt abandoned children in Guatemala orphanages as soon as Guatemala implements the Hague Convention (expected January 1, 2008).

The information in this article has been provided by Doug Chalke, Executive Director of Sunrise Adoption, a licenced Canadian and international adoption agency in British Columbia.   For more information about Sunrise's international adoption programs, contact Sunrise:

Sunrise Adoption Head Office:

Satellite Office:

Telephone: 604-984-2488
Toll free within Canada 1-888-984-2488
Fax: 604-984-2498