A report by the Committee on the Rights of Children of the UN
On June 6, the Committee on the Rights of Children of the United Nations Human Rights office, published a report about measures taken in the United States of America regarding: sales of children, child prostitution and child pornography.
It's 11 pages long, so I am not going to publish it in its entirety here, though I made it available as a PDF attached to this post.
In the report the following observations are made, which I would like to highlight here:
The Committee welcomes the recent ratification of the Hague Convention on Inter-Country Adoption and notes that the Department of State (DOS) has been identified as the Central Authority. In this respect, the Committee is concerned about the fact that for-profit persons may be approved to perform Central Authority functions, though they must comply with the requirements and qualifications indicated in article 22, paragraphs 2 (a) and (b) of the Hague Convention, including integrity, professional competence and accountability.
Not only may for-profit organizations and persons be accredited, they are. At the time of writing these for-profit organizations are listed on the state department's website:
- Baby Steps International
- Adoption International Adoption Guides, LLC
- For This Child
- James Fletcher Thompson, LLC
- Huminska's Anioly
- Michael S. Goldstein, P.C
When the preliminary list of Hage accreditation came out and of February and I noticed there were approved for-profits on it and accredited non-profits. I contacted the state department to ask for clarification. This was their response:
... The approved status question; I have some background material from the Proposed Accreditation Rule, which discusses the origins of the this determination and how it relates to the status of accredited agencies. I hope it’s helpful to you. I’ve attached a copy of the proposed rule. Keep in mind that the proposed rule changed somewhat when it was published in final in 2006. The introductory section, from which the text below is taken, however is still valid.
Part IV, C. Distinction Between ``Agency'' and ``Person'', p. 54069
The Convention effectively differentiates between non-profit bodies and for-profit entities and individuals. The Convention favors the use of non-profit bodies, and Article 11 of the Convention requires that "accredited'' bodies "pursue only non-profit objectives''--a requirement incorporated into these regulations by reference to non-profit tax treatment under section 501(c)(3) of the Internal Revenue Code or relevant State law. Notwithstanding this preference, the Convention in Article 22 also permits other bodies and persons--herein referred to as ``for-profits''--to provide Convention adoption services. Persons (for-profit entities and individuals) must, however, meet the requirements of Article 22(2) of the Convention, which are not applicable to non-profit agencies. Article 22(2) requires persons to have the integrity, professional competence, experience, accountability, ethical standards, and training or experience to work in the field of intercountry adoption.
Moreover, Article 22(4) of the Convention explicitly allows party states to declare that the adoption of their children may take place only if the functions of Central Authorities are performed by public authorities or accredited agencies (effectively, for U.S. purposes, private non-profits) and not by approved persons (effectively, for U.S. purposes, ``for-profits'').
These regulations reflect the Convention distinction by utilizing different terms to describe non-profit agencies versus for-profit entities and individuals. Under these regulations, agency means a private, non-profit organization licensed to provide adoption services in at least one State. It does not include individuals or for-profit entities. Person means an individual or for-profit entity (including a corporation, company, association, firm, partnership, society, or joint stock company) providing adoption services--consistent with the definition in section 3(14) of the IAA. To be consistent with the Convention's requirement that only non-profit agencies be accredited, the IAA provides for the accreditation solely of agencies and uses a different term--approval--to describe the status of individuals and for-profit entities. (See Pub. L. 106-279, section 203). Therefore, under the IAA's rubric, agencies are eligible to seek accreditation while persons (individuals and for-profit entities) are eligible only to seek approval.
The Department has made every attempt within the given statutory framework to ensure that persons adhere to the same requirements as non-profit agencies. Thus, the standards in subpart F of part 96 (with limited exceptions to recognize the special circumstances of private individuals) apply both to agencies seeking accreditation and to persons seeking approval. Sections 96.31 and 96.35 also contain provisions unique to persons seeking approval. They mainly provide standards tailored to the different corporate structures used by such persons or contain more rigorous provisions than those applicable to agencies in light of the additional Article 22(2) provisions on professional competence that apply only to persons. Also, the Convention allows only accredited agencies, not persons, to assume responsibility for preparing a home study or a child background study.
The proposed rules, therefore, provide that, when an approved person or a non-accredited agency, rather than an accredited agency, completes a home study or child background study, it must have the home study or child background study approved by an accredited agency. The approval requirement is included so as to comply with Article 22(5) of the Convention which requires that home studies and child background studies be prepared under the responsibility of accredited agencies or public authorities.
Although the IAA allows approved persons to provide adoption services in Convention cases, some State laws do not. These regulations are not intended to affect any State laws that may prohibit such persons--either individuals or for-profit entities--from providing
adoption services in a particular State. If a State does not allow persons (whether the prohibition is against individuals or for-profits or both) to operate in a particular State, these regulations do not in any way preempt such State law. The Department welcomes comments on the interplay between State law and the IAA provision for approval of persons. The Department's goal is to follow the IAA and allow persons to be approved without preempting State laws that may prohibit individuals or for-profit entities from providing adoption services in a particular State.
Persons seeking approval should note that these regulations require them to be licensed or otherwise authorized to provide adoption services in at least one State. If in the future all States were to prohibit for-profit entities from providing adoption services, then no for-profits could become approved under these regulations. Similarly, if in the future all States prohibited individuals from providing adoption services, then no individuals could become approved under these regulations.
According to Article 22(4) of the Convention, Convention countries may declare that adoptions of children habitually resident in their territory may take place only if the functions of the Central Authority in the receiving country are performed by public authorities or by non-profit accredited bodies. Thus, individual Convention countries may refuse altogether to work with approved persons and may be willing to work only with accredited agencies.
I am glad to see I was not the only one concerned with the approval of for-profit organizations and persons and that the United Nations takes a position against this practice too.
Another important point made in the report, was the following:
The Committee is also concerned at the information that, according to the current regulations, the payment of prenatal and other expenses to birth mothers abroad would still be possible.
I am glad to see the United Nations speaks up against this. The Hague treaty leaves far too many possibilities open for unethical practices and in my opinion is more a trade agreement than means to protect children.
The report concludes with the following recommendations:
In order to strengthen the safeguards against sale of children for adoption purposes, the Committee recommends that the State party:
- adequately and effectively implement the Hague Convention on Inter-Country Adoption in order to curb the instances of sale for adoption purposes;
- ensure that not only the accredited agencies, but also the approved persons pursue only non-profit objectives;
- expressly prohibit all forms of possible active solicitation for children, including the payment of pre-natal and other expenses;
- intensify its efforts to prevent and punish all the cases of sale of children, notably those occurring via the Internet, irrespective of the purpose of the sale;
- seek to ensure that the principle of best interests of the child and the safeguards guaranteed in the Hague Convention are equally respected in case of adoption from countries not parties to the Hague Convention;
- effectively apply the principle of subsidiarity as enshrined in Section 303 (a)(1)(B) of the Intercountry Adoption Act of 2000, in order to ensure that U.S. children are primarily adopted in the U.S.
I would like to add a seventh recommendation, which is the ratification of the United Nation's Convention of the Rights of the Child, but I'm afraid Somalia will be quicker to do so than the USA.