RIGHTS OF THE CHILD
Report of the Special Rapporteur on the sale of children, child prostitution
and child pornography, Ms. Ofelia Calcetas-Santos
Report on the mission to Guatemala
[excerpts - complete document attached]
II. THE SALE OF CHILDREN
A. For intercountry adoption
10. Of all the concerns of the mandate of the Special Rapporteur, the sale of children is of particular concern in Guatemala. The sale and/or trafficking of children out of Guatemala mainly occurs for the purpose of intercountry adoption, but there are also reports of the trafficking of children into Guatemala for the purpose of prostitution.
11. Intercountry adoption developed into a profitable business as a result of the large number of children who were orphaned or abandoned during the years of conflict. What started out as genuine efforts to place quickly children in dire need of homes turned into lucrative business deals when it became apparent that there was a great demand in other countries for adoptable babies.
The situation within Guatemala, including the extreme poverty, a high birth rate, and lack of effective control and supervision of adoption proceedings, sustained this trade, and the demand was further increased in 1997 when neighbouring Honduras began to take measures to stop illegal adoptions in that country.
12. Guatemala currently has a very high rate of adoptions. According to statistics from the courts, there were 1,252 intercountry adoptions in 1997, 1,332 in 1998, and 772 in the first five months of 1999. This number is particularly high when compared with, for example, Ecuador, which has a total of about 50 adoptions per year. Ninety-five per cent of the adoptions of Guatemalan babies are intercountry; it is reported that Guatemala is the fourth largest “exporter” of children in the world. Statistics from the Office of the Attorney-General (Procuraduría General de la Nación) show that the top five receiving countries for the years 1997 and 1998 were the following:
Approved adoptions for 1997
United States 831 (71%)
France 163 (12%)
Canada 67 (4%)
Spain 51 (3%)
Italy 43 (3%)
Approved adoptions for 1998
United States 854 (62.34%)
France 166 (12.11%)
Canada 73 (6.33%)
Spain 71 (5.19%)
Italy 32 (2.34%)
13. Of course, some adoption proceedings are completely legal. In these cases the child is surrendered freely by the mother, or both parents, or the child has been declared abandoned. However, according to the information obtained, legal adoption appears to be the exception rather than the rule. Since huge profits can be made, the child has become an object of commerce rather than the focus of the law. It would seem that in the majority of cases, international adoption involves a variety of criminal offences including the buying and selling of children, the falsifying of documents, the kidnapping of children, and the housing of babies awaiting private adoption in homes and nurseries set up for that purpose.
14. A network of nurseries, foster homes, temporary homes and foster families has been created. The number of children sent to State homes in favour of private homes has declined considerably in consequence. Some of these homes are approved by the Ministry of the Interior and function as orphanages or non-profit associations while others exist only to facilitate the work of the international adoption network. They would be in violation of the law if only because they are businesses that are not registered with the Ministry of Health or the Ministry of Finance.
1. International legal framework
15. The Convention on the Rights of the Child was ratified by Guatemala by Ratification Decree No. 27-90 of the Congress of the Republic on 10 May 1990, and entered into force on 2 September 1991. It was the sixth country to ratify the Convention. Guatemala submitted its initial report to the Committee on the Rights of the Child in 1995 (CRC/C/3/Add.33). In its concluding observations (CRC/C/15/Add.58), the Committee expressed its appreciation to the State party for its openness in acknowledging the problems, difficulties and challenges it was facing in implementing the principles and provisions of the Convention. The Committee welcomed the steps taken to secure a durable peace within Guatemala, particularly by enhancing the enjoyment of human rights, including for the indigenous peoples.
16. The Committee expressed its concern over deficiencies in the system of birth registration in that the failure to register children prevented them from being recognized as persons, from having access to education and health services and from being protected against trafficking and illegal adoption. The Committee also noted with concern the information provided by the State party that an illegal adoption network had been uncovered and that the mechanisms to prevent and combat such violations of children’s rights were insufficient and ineffective.
17. The Special Rapporteur would echo these and other concerns. The Government has still not brought into effect laws that reflect the spirit of the Convention.
18. Guatemala has not yet acceded to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. In the meeting with the Minister for Foreign Affairs, the Special Rapporteur was given the excuse that the lack of a certified copy of the Convention was holding up accession to the Hague Convention.
19. The information provided to the Special Rapporteur suggests that Guatemala has the weakest adoption laws in Central America. Several drafts of adoption laws are pending in Congress but no action has as yet been taken. Trafficking of children is not even typified as a crime under the law. It is reported that a stiffer penalty is imposed for the theft of a car than for the theft of a child.
20. In 1996, the most important draft legislation in Guatemala concerning children was the Children and Adolescents’ Code. Both State and non-State organizations worked for its adoption. Initially, all political parties were in favour of the Code but it became a very politicized issue. The main resistance came from people involved in intercountry adoptions who feared that greater protection could interfere with their economic interests since the new Code provided for imprisonment for six years of convicted traffickers of children. They are reported to be largely responsible for encouraging the apprehension of some conservative sectors that the Code would undermine the family unit. As a result of this resistance, the date on which the Code was to come into force has been postponed three times.
21. In almost all the discussions the Special Rapporteur had, both with governmental and nongovernmental actors, it became clear that the real objection to the Children and Adolescents’ Code is perceived to be that it would pave the way for the passage of the Adoption Bill, which has also been languishing in Congress.
22. The Special Rapporteur was informed that the first postponement of the entry into force of the Code was made at the request of the then President of the Supreme Court; since that time, there have been allegations that his wife is one of the lawyers involved in the trafficking of babies.
23. The Code is now scheduled to enter into force in March 2000, and it is hoped that by then consensus can be reached. In a meeting with the Special Rapporteur, the President of Congress, Leonel López Rodas, assured her that he was very much aware of the problem of sale of children for adoption in Guatemala and that he would definitely push for the entry into force of the Code, and for the passage of the Adoption Bill. He said there were still certain issues that were the subject of debate regarding the latter, such as the creation of an institute that would handle all adoption cases, and whether such an institute should be staffed by government officials or NGOs. Nineth Montenegro, President of a commission set up to follow developments relating to the Code, considers an autonomous adoption centre to be a good idea. All the relevant agencies - UNICEF, the Catholic Church, representatives of executive bodies and the various ministries - agree that the Children and Adolescents’ Code is very important, not least because there are about 6 million children in Guatemala, accounting for 51 per cent of the population.
24. UNICEF, in cooperation with the Latin American Institute for Education and Communication (ILPEC), formed an investigative team on adoption, one of the goals of which is to make the adoption procedure more transparent. The team will submit its findings to Congress in order to assist it in the consideration of the Adoption Bill.
2. Methods of adoption
25. There are two ways to adopt a child in Guatemala. The first is through a lawyer or notary (the private (extrajudicial) adoption process); the second is through a Government-recognized adoption agency or orphanage (the public (judicial) adoption process). Both processes are initiated by either the biological parent or by the person seeking to adopt. The biological parent makes a declaration to an attorney that the child is being given up for adoption. The person wishing to adopt gives the lawyer a power of attorney for the lawyer to locate a child or to do the legal work if a child has already been identified. The same attorney usually acts for both the biological and the adoptive parents. The legal work pertains to the adoptive parents’ documents and those of the child. The latter are the birth certificate and the irrevocable consent of relinquishment of parental rights of the child’s biological parent - usually the mother. If both parents are alive, there may also be a need for a declaration of abandonment issued by the minors court of Guatemala, for example to satisfy United States immigration requirements.
26. Upon petition of the lawyer, the family court assigns a social worker to undertake a case study of the biological mother and other family circumstances of the child and to analyse the home life of the adoptive parents. This is the only participation by the family court in the whole procedure, and it is necessary only because the notaries or lawyers concerned need the services of the court-appointed social worker.
27. Following a favourable recommendation by the social worker, the lawyer submits all the documents to the Office of the Attorney-General for review. The Office of the Attorney-General only checks to see that the documents are in order. If there are doubts, or if there is a suspicion that the papers have been forged, an investigation is conducted and should there be any reason to believe that an offence has been committed, the file is passed on to the prosecutor’s office. Upon approval of the documents, the lawyer draws up the final adoption papers, obtains a new birth certificate in the adoptive parents’ names, and obtains a Guatemalan passport in the child’s new name.
28. Public or judicial adoptions require a court decree only when the parents are known to have died or deserted the child or when there is doubt about the real birth mother. The process grants considerable discretion to the judges, both in terms of the time that the process takes and the basis on which the decision is made. The juvenile court, not the family court, will first have to declare the child abandoned. The process usually takes about a year.
3. Locating children for adoption
29. Almost everyone the Special Rapporteur spoke with in Guatemala City gave the same account of how children are located for intercountry adoption. The lawyer or notary processing the adoption is the most active actor in the whole procedure (and the person who benefits most), finding the babies to be placed for adoption, representing both the birth mother and the adopter, and issuing the certificate of adoption. It is likewise reported that the lawyers handling adoptions, in collusion with others, also operate houses where children who are stolen or purchased are cared for while awaiting finalization of the intercountry adoption. These are known as “casas
cunas” (cot or crib houses) but are often derisively referred to as “casas de engordeza” (fattening houses).
30. Prior to the mission, the Special Rapporteur had indicated her desire to meet with the Bar Association of Guatemala. Her request was initially denied by the Association but towards the end of the visit they changed their minds and the Special Rapporteur was able to have a fruitful dialogue with them. She took that opportunity to explain that she was not opposed to the institution of adoption, whether it be national or intercountry, and that she had not visited Guatemala with the purpose of evaluating the advantages of one over the other. She was interested in examining allegations of sale of children, regardless of the purposes of the transaction. She stressed that she considered the sale of a child to be inherently abhorrent even where the intentions were most noble, as it violated the human rights of the child and reduced the child to an object of trade and commerce.
31. According to the information received networks of (usually female) recruiters, hired by lawyers, pay rural midwives approximately US$ 50 to register the birth of a non-existent child, using a false name for the birth mother. Upon payment of approximately another US$ 50, another woman “becomes” the mother and is given a baby - usually stolen - and told to take the baby to Guatemala City to give it up for adoption. The woman signs the notary’s documents giving up “her” child and the baby is placed in a foster environment, preparatory to adoption proceedings.
32. In Tecúm Umán, the Special Rapporteur learned of the case of two sisters involved in trafficking in babies. They worked by contracting women when they became pregnant, either through persuasion or deception. When the police raided the house of the sisters they found baby clothes and pregnant women there. The sisters were arrested and one of them was imprisoned for 6-7 months, but upon her release returned to the same activities. The woman has been able to continue her “trade” despite her activities being common knowledge in the area.
33. There are notaries and lawyers who buy babies while they are still in the mother’s womb. The purchase is arranged by the lawyers and notaries either personally or through agents and middlemen. Even the birth takes place under the supervision and care of the notary.
34. A minor’s court judge is under investigation for allegedly being part of the trafficking network. It would seem that she was involved in declaring stolen babies abandoned and referring these babies to the same adoption agency.
35. Another means of procuring babies for international adoption is allegedly by tricking or drugging illiterate birth mothers into putting their thumbprint on blank pieces of legal paper which are subsequently filled in to read as a consent to adoption of the baby. The mothers are then threatened by the lawyers if they attempt to get their babies back. Ignorant of the law, these fearful mothers often painfully give up the fight and assume that nothing can be done to help them because they are poor.
36. In general, recruiters prefer to deal with mothers whose babies have not yet had their births registered, or have not yet been born. The recruiters use middlemen to seek out pregnant women who, because of poverty or prostitution, might be willing to give up their children or to sell them. The search is conducted in such places as markets, doctors’ offices, and even in the hospitals.
37. A high percentage of the children who are given up for international adoption are the children of prostitutes. They are not only offered money for the child, but are given financial support during the pregnancy and after the birth.
38. When a biological mother cannot be persuaded to give up her child, recruiters often resort to threats or even baby-stealing. In Escuintla, the Special Rapporteur was told of the case of a prostitute who was pregnant and was threatened with death by the owner of the bar where she worked if she did not give up her baby for adoption. The bar owner worked in cooperation with a midwife, and the pregnant woman was taken to the house of the midwife and kept there under lock and key with other pregnant prostitutes until she gave birth. She did not see her baby again.
39. A smaller percentage of the children come from families living in extreme poverty, who give up their children for economic reasons. Another group is made up of the children of rural women who go to the capital to give birth and then give the child up for adoption or sale before returning to their homes.
40. One worrying development that was reported to the Special Rapporteur is the contracting of women to bear a child and who then register it, take care of it for three months and then give it up for adoption. During the three months they receive medical care, food and money. After the adoption papers have been signed, the child is given to a nursery. The Special Rapporteur was told about one woman who had given birth to six children, all of whom she gave up for adoption.
41. There are also women who are paid to abandon their babies in or near a hospital. The mothers are paid in advance to leave the child, and often enter the hospital under assumed names. The babies are then sent to one of the State-approved homes. In cases where the abandonment of a baby has been previously arranged, the interested parties take the mother to the hospital and then attend all the hearings in order to locate the child after it has been sent to a home.
42. Illegal activities many times take place in the hospitals. At the birth, hospital workers have been known to falsify the birth records, social workers to facilitate the declaration of abandonment, doctors to give false information to the biological mother that the newborn is seriously ill. For lack of funds, poor mothers often are not able to return to the hospital daily to visit their newborns who then disappear or are declared abandoned. Sometimes, when the pregnant women who have agreed to sell their babies come to the hospital they already have an identification card in the name of the adoptive parent. Thus, the birth certificate is issued in the name of the buyer, thereby eliminating the need to go through the adoption process.
43. Some staff members in the hospitals are apparently involved in the business. Information is systematically leaked out of the hospital about the babies there. It is very easy for interested people, especially those working in embassies, to get this information. In Escuintla, one worker in a hospital told the Special Rapporteur that she was told by a doctor in the hospital to let him know the moment there was a new baby. Even a judge who owns an adoption home went to see her at the hospital to ask if there were “available babies” there.
44. There are midwives who offer pregnant women free check-ups in their clinics, during which time the women are often persuaded to sell their babies. (In Escuintla, some of these midwives are in Colonía Portales, Palmeras del Norte and in Porto San José.) If the women agree, they would give birth in the clinic, then leave without the baby, but with money paid to them. It is reported that one such clinic is in the same building as a lawyer handling adoptions.
45. The practice of false mothers presenting babies for adoption came to light when the Canadian embassy began carrying out DNA tests on babies and their “mothers” in 1997. Many results demonstrated that the women giving up the babies were not the birth mothers. Because of the attention given to illegal adoptions from Guatemala, the United States and the United Kingdom Governments now require DNA testing of all babies being adopted from Guatemala.
IV. COMPARATIVE ANALYSIS
A. On the sale of children for intercountry adoption
88. This section intends to present a general situation analysis of the sale of children for intercountry adoption. It is not intended to be a comparative analysis of national vis-à-vis intercountry adoption. Neither is it intended to discuss the advantages or disadvantages of one over the other.
89. The Special Rapporteur would like to emphasize that it is quite difficult to obtain a comprehensive and accurate view of a country, especially one as diverse as Guatemala, during a two-week visit. At the same time, however, the intensive programme of the visit enabled her to gain an understanding of the situation in Guatemala sufficient to form the basis of her recommendations.
90. National adoption seems to be quite straightforward and does not pose any threat to children. More problematic is intercountry adoption. The lack of clear guidelines either by way of legislation or by way of policy coupled with vested economic interests have created a host of complex issues which make even an objective discussion very difficult. The Special Rapporteur is convinced that trafficking of babies and young children for intercountry adoption exists in Guatemala on a large scale. The Special Rapporteur would enumerate some of the weaknesses in a system that lends itself to the nefarious practice of reducing children to commercial objects to be offered to the highest bidders. These weaknesses are described in the following paragraphs.
91. The decision whether an adoption will be handled through lawyers/notaries or family courts is ostensibly made by the person who is putting the child up for adoption. In actuality, however, it is the lawyer handling the adoption who makes the decision, which is almost always private adoption because the lawyer has greater control and stands to make more money. In her conference at Hogar Rafael Ayau, one of the four orphanages to which the Government sends abandoned and other needy children, the nuns running the orphanage suggested that only 1 in 30 adoptions are processed through these orphanages as judicial adoptions. The rest are done privately through lawyers. The nuns complained that the parents are being discouraged by the lawyers from giving their children to the orphanages. Parents also prefer to go to the lawyers
because the lawyers give them money.
92. The best interests of the child put up for adoption are rarely considered in the whole process. Under most arrangements the biological parent does not have any say in who will become the child’s adoptive parent. The notary/lawyer chooses the adopters, and he/she is highly unlikely to give the child to a family in Guatemala, where the adoption procedure would only cost about Q3,000 (about US$ 300). He or she would prefer to give the child to a foreign couple who may be willing to pay as much as US$ 25,000. Thus, the best interest of the child is totally ignored, and the adoption becomes purely a business transaction.
93. The cursory participation of the family courts and the Office of the Attorney-General in private or extrajudicial adoptions does not provide any effective control over the proceedings. In her dialogue with the association of lawyers involved in adoptions, the lawyers maintained that the whole process is subject to rigid control by the Government because they have to pass through not only the family courts but also the Attorney-General’s Office. However, meetings with the family courts and the Attorney-General’s Office revealed that while the family court assigns the case to a social worker, it does not supervise the social worker in the conduct of the case. Likewise, the Office of the Attorney-General simply reviews the documents presented to it and cannot look into how the papers were obtained. The role of the Attorney-General’s Office is only to ensure that the documentary requirements are complied with; they do not go beyond the paperwork.
94. In cases where a declaration of abandonment from the minor’s court is necessary, a very long wait is often involved which could last up to seven years, particularly for children who are in government institutions or religious or non-profit nurseries. The Special Rapporteur had a chance to visit several orphanages where she heard the common concerns regarding the much greater difficulty they have with the judicial adoption process than with the lawyers dealing with private adoptions. Since the children in the orphanages are mainly abandoned children, the orphanages have to go to minor’s court to get the required declaration of abandonment. The process takes years, and very often when they get the declaration the child involved is no longer considered adoptable. Lawyers dealing with private adoptions, however, are able to get a
declaration of abandonment for babies before they are even born.
95. In a study done by UNICEF in collaboration with ILPEC, out of 90 adoption files, 79 were private adoptions arranged directly between the biological mother and the lawyer and only 11 involved children from orphanages. It has been established that the orphanages and established institutions are filled with children who are not being adopted. The situation raises fears that the children who are being readily adopted are those who are being produced for the purpose, whereas the ones who are really in need of a family remain in institutions.
96. The adoption procedures are not very transparent. When done through lawyers, there is no check on the origins of a child and no follow-up or monitoring of the procedure. The adoption may well be legal in that it is in keeping with the law, but it may be accompanied by irregularities. The lawyers take advantage of “voluntary jurisdiction” whereby it is not necessary for the judge to be involved in the adoption procedure. It is reported that 99 per cent of adoptions are through lawyers and notaries and of these, 95 per cent are intercountry adoptions.
97. The emoluments of lawyers and notaries are not subject to regulation, which contributes greatly to the escalation of adoption costs. It is reported that the cost of an intercountry adoption could be as high as US$ 20,000-$25,000. This enables the lawyer to give incentives or commissions to recruiters, and to contacts in the courts and different government agencies to facilitate the adoption.
98. In private adoptions, where the mother gives her child directly to a lawyer, it is very difficult to verify the origin of the child. The social worker often does not pay home visits owing to lack of time, or because the social worker acts in connivance with the lawyer. In her dialogue with the family court judges, the Special Rapporteur was told that even the addresses given by the supposed biological mother often turn out to be fictitious. She was also told that some lawyers handle up to 15 adoptions a month using the same social worker. Social workers are part of the staff of the family court, but in adoption proceedings the social workers act on their own responsibility and under oath and are not subject to the supervision of the courts. The Special Rapporteur met one judge who had sought to have better control over the adoption system; however, she was threatened and the court supervisory body received complaints against her.
99. Adoption proceedings can be initiated anywhere in the country. Women recruited in the provinces are instructed by the lawyers to go to Guatemala City to give birth as it is much easier for the lawyers to control the adoption proceedings and to conduct irregular practices in the capital. Family courts in the provinces have better facilities to verify the child’s origins and home situation. Lawyers also want to be sure that the mothers are readily available when the time comes for them to affirm to the court or to an embassy their consent for their child to be adopted. According to one person involved with the issuing of visas in the French embassy, lawyers assist the mothers in Guatemala City until the end of the process to ensure that the mothers do not disappear.
100. Intercountry adoptions are much preferred to national adoptions. As previously explained, lawyers handling adoptions almost always opt for intercountry adoption. Below are some other reasons why there are generally fewer possibilities for national adoption:
(a) Most Guatemalans cannot afford the high cost of adoption;
(b) Many local adoptions are informal arrangements between relatives and are not formal adoptions per se;
(c) Some local adoptions are not registered as adoption at all but, by falsifying documents, as normal births;
(d) The high birth rate in Guatemala means that comparatively few Guatemalan couples are childless;
(e) Guatemalan couples wanting to adopt generally have more stringent requirements for the children they want to adopt, for example, the colour of the hair and eyes, the ethnic origin, etc.;
(f) Guatemalans rarely adopt publicly; they prefer clandestine adoption not only because it is cheaper but also because they do not want people to know that the child is not really theirs by birth. Thus, the statistics do not really reflect the true picture.
101. The system of identification of persons in the Civil Registry lends itself to every type of falsification. Documents are invented. There exist cases where intermediaries look for a poor couple who do not have the means to lodge a complaint. They ask the couple to sign a power of attorney, in return for money, so that a passport can be obtained in the name of their child. The power of attorney is then authenticated by a notary. This document and the passport of the couple’s child is then used for a different child. Mario Taracena, the former head of the Guatemalan Congressional Commission on the Protection of Minors, told the Special Rapporteur that in Guatemala it is easy to obtain any document for a few cents, including a birth certificate.
102. The weaknesses in the system have been such that they have resulted in clear absurdities. The Special Rapporteur was told that one woman “legally” had 2½ children a month, whom she gave for adoption, and all the adoptions fulfilled the legal requirements - 33 children of the same mother in 2½ years. This was discovered through the visa section of the United States embassy, but by that time 33 children had already left Guatemala. In another situation, a total of 40 adoptions in one year took place in a very small town called Catarina, in San Marcos. The Special Rapporteur was told that this number amounted to more than half the total number of babies born in Catarina in one year.
103. The current situation is such that instead of seeking parents willing to adopt needy children, the production of babies to supply adoptive parents is being encouraged. There are even advertisements appearing on the Internet - the younger the child, the higher the cost. The prospective adoptive parents can select a child according to its age, ethnic group, information about the mother, etc.
104. In defence of the current system of adoption in Guatemala, the Special Rapporteur was advised by representatives of the Institute for Family Law (Instituto de Derecho de Familia) that the issue of adoption is considered to be politically manipulated. Effective checks are said to be in place, and it is not true that standards for adoption are not clear. It is further considered that adoption is one of the most controlled processes in Guatemala and that Law 5477, which grants voluntary jurisdiction in adoption cases, is a very advanced law and has been used as a model by other countries. The Law had been enacted because the courts were overwhelmed with adoption
cases and the legislation provided that in cases where there is no litigation, the court could delegate them to a professional specialized lawyer. It was claimed that these procedures are constantly subject to supervision and control by the State organs, and that the lawyers involved merely carry out certain acts that are also controlled by the State. The result was to streamline the whole procedure: instead of taking one or two years an adoption could be done in a quarter of the time; this was particularly important for a child needing to join his new parents quickly.
105. The Institute considered that the system of adoption should continue as it is - handled by lawyers who know the procedure - because to transfer control to the State would encourage corruption and lessen the possibility of children finding a family. This concern was also raised by the representative of the United States embassy, who considered that despite the many weaknesses of the current system, a transferral of full control of adoption procedures to State authorities would not rid the system of corruption and personal financial gain, and might have the effect of keeping more children in orphanages.