BILL 3735 - THE ORTEGA LAW REVAMPED
BILL 3735 - THE ORTEGA LAW REVAMPED
In view of the many amendments done to Bill 3217, the anti adoption forces came up with the idea of passing another bill, to include the suggestions of The Hague Permanent Bureau and the US DOS, reinforced by the threats of the US Embassy to cancel the US visas of those congressmen who did not vote for it.
The result is a much more restrictive law, with the same problems that Bill 3217 has, and it also has the same constitutional violations that make it vulnerable to challenges, that most certainly, ADA and other pro adoption organizations will file. The Guatemalan Constitution protects the rights of the parents to decide who can adopt their child, which is denied by Bill 3735. It also protects the notarial process, which has been eliminated, for no other reason than because it works well and allows children to be adopted.
Until now, in Guatemala only the adoption lawyers and the hogar directors care for the needy children, giving them a home to be cared for while they wait until their adoption are finalized and their adoptive families come to take them to their permanent homes. For the Guatemalan government, those children don’t even exist. They deny their existence by claiming that they are being bred to satisfy the demand of children by Americans who want a child because they cannot have their own. The evil rumor that children are adopted to be used for organ transplant is also in Bill 3735, where it sates that there is a prohibition for the adoptive parents to use the organs of the children for illegal purposes.
The government refuses to take responsibility for the lack of social services for the children who are not wanted or whose families cannot support them. Nobody and nothing stopped ever Bienestar Social to open orphanages to care for those children and to do adoptions free of cost, more efficiently and faster than the lawyers. But in order to do so, they would have had to spend money and put in a lot of work, and they were not willing to do so. Why bother, if the lawyers were already doing it? Regarding the orphanages, it is a little known fact that the State of Guatemala does not support orphanages and does not intend to do so. If adoptions become no longer possible, the children will not languish in state orphanages. They will either be left abandoned in public places, where they will most likely die or will be rescued by whoever finds them, to be used as they want, or will be aborted or killed by their own relatives. That is what we are trying to avoid. Because we know that the government is totally reluctant to support the children and that neither UNICEF, nor Casa Alianza, and the other so-called human rights activists, are willing to undertake the burden of housing, feeding and educating them, much less to work in finding loving permanent families for the children.
Bill 3735 does have a grandfather clause, but the catch is that it states that the adoptions already started must be recorded with the Central Authority within 30 days after the law takes effect, which according to Bill 2735 sill be on December 31st. 2007. The Central Authority would take some months to be duly organized. A private entity would do it in a month, but the wheels of the public administration turn very slowly, so it is expected that it would take them a lot more to find a building and get the furniture, equipment and staff to start working properly. By the time the Central Authority opens its doors, the thirty days given to record the in process adoptions, will be a distant memory. It is necessary that the law takes effect, as stated in the more reasonable Bill 3635, in two parts: one date for the organization of the Central Authority and another date for the actual effect of the law.
Bill 3735 states that the domestic adoptions are free of charge, but the Central Authority would charge for international adoptions. After all the criticism that the lawyers have received for doing the same, it seems that it is not so bad to charge the foreigners after all. The proceeds will finance the Central Authority, which is right, but also will provide funds to support the courts of the childhood and adolescence and the family courts, which is not right because they are supported by the Judiciary, which has its own means of support. There is no allocation of funds to support the children while they are being adopted. The Central Authority would oversee that the private orphanages comply with every disposition they choose to mandate, without giving them any financial assistance or allowing them to charge for the care of the children. The logic consequence of such dispositions is that the private orphanages will close their doors and the children will be deprived of the good care that they receive there. The foster homes and foster mothers are not even mentioned in such proposal, thus eliminating one of the best features of the Guatemalan adoptions.
Guatemala has the opportunity to pass a law that at the same time that complies with The Hague Convention, establishes a system that allows the children to be adopted safely, protecting their rights as well as those of the birth parents an their adoptive parents.. It is a pity that the pressure being used to stop adoptions, is making the Guatemalan Congress to waste that opportunity, by giving in to the threats of US visas being cancelled. We expect everything from UNICEF and Casa Alianza. All along -hey have proved over and over that there is nothing beneath them. But we certainly expected a fair treatment from the United States. After all, we have been their allies all the time and if they can allow adoptions from Russia and China, who have been their enemies for a long time, it is not too much to ask that they allow our children to have a better lives in their country. Bill 3735 does not allow adoptions, and its grandfather clause would not work, unless the Central Authority is in place and ready to efficiently register the adoptions in process, by the time the thirty days that the law establishes, start running. As it is stated in the proposal, there would not be a way to register the process within the month after the law becomes effective.
All the countries who are bound by The Hague Convention should admit that it has not improved the conditions of the lives of the needy children of their countries. It is undeniable that the results of the Hague Convention are more negative than positive, and therefore, that the convention should be eliminated, because no matter what abuses it may eliminate, it is not worth it if the cost of doing so is to deprive the children who need families, of a way to get them. The right to be raised by a family should be above any international treaty, especially one like the Hague Convention, whose implementation has affected negatively the lives of many children in those sending countries whose children have to live and die without the love of a family.
In order to pass Bill 3735, Congress needs 105 votes, because that is the amount of votes needed to approve the creation of the Central Authority, which is an autonomous entity. In normal circumstances it is difficult to get that amount of votes. Now that the normal term of session is over and that 90 of the Congressmen were not reelected, it is more unlikely that they will attend the extraordinary sessions scheduled for the first two weeks of December.
If the law is not approved, we still have to deal with the Hague Convention. According to the Hague Convention itself, the way to become bound by such treaty is through ratification or accession. Since Guatemala never signed the Hague Convention it cannot be ratified, only acceded. The Constitutional Court already ruled that the President of Gautmala does not have the power to accede any treaty, but that small detail did not stop the Congress from approving again the same convention. The problem is how to actually become bound by the Hague Convention on Intercountry adoptions. Those who want it to be effective on December 31st, have stated that the former accession, the same that was ruled unconstitutional by the Constitutional Court in 2003, can be resuscitated and therefore, there is no need to send an instrument of accession and to wait three months as the convention states.
The US DOS in its website supports this travesty by saying: The Guatemalan Government has said it will assume its obligations as a Hague Convention member on December 31, 2007, a decision we support, because Guatemala’s children -- indeed all parties to an international adoption -- deserve the protections afforded by the Convention as soon as possible.
The statement of the US DOS does not make sense at all, because the Hague Convention does not apply when one of the countries is not a Hague Country, as it is the case of the United States. Therefore, why is the rush in making Guatemala to become bound by the Hague when it is not yet prepared to implement it and that it will not be applied to the ninety eight percent of the Guatemalan adoptions? The warnings against starting new adoptions at the same time that a second DNA is required, do not make sense either. Adoption laws in Guatemala remain the same and if Congress stops being pressured into passing a bad law, a proper grandfather clause will be included in any adoption law that is approved. Any case started before the adoption law changes, will be grandfathered, it is irrelevant if the case started fourteen months before or the day before. To discourage people from adopting children of Guatemala, does not benefit the children and does not help the parents who want to adopt. To add a second DNA is to insure that the child adopted is the same child that was relinquished. The allegations that the Guatemalan system is unregulated are proven wrong by the description of the process posted by the Joint Council for International Children’s Services at
http://www.jcics.org/CIS
The Hague Convention does not come into effect for Guatemala on December 31st. 2007, because it is just the date when the approval by Congress becomes effective. The date when the instrument of accession is received by the Secretary of The Hague Conference will set the starting point when the three months that the convention states, begin to run. To reinforce the wrong belief that the Hague Convention becomes effective at the end of the year, President Berger appointed as Central Authority the Secretaria de Bienestar Social de la Presidencia. It is interesting to point out, that he has no legislative powers to do so, which makes such appointment null and void.
In order to limit the number of children being adopted by American families, the US embassy reduced the number of initial documents being submitted by each lawyer, to only one a day, from Monday to Thursday. In order to submit a case, the lawyer or his/her employee, has to stand in line since five in the afternoon of the day before, spend the night on the sidewalk of the embassy and be there the next morning, when only forty numbers are given. Out of the forty cases presented, very few are admitted. The others are rejected for whatever reason the person at the window can come up with. The pictures of mother and child are a fertile ground for rejections. The background is not white enough, the ears are not showing, the picture was not taken at a studio, but with a digital camera, the child does not have the eyes open enough, etc. The list is endless. It seems to be a superior order to reject as many applications as possible, which is totally against the best interest of the children who need permanent and loving families.
We trust that the Bill 3735 will not pass and that reason will prevail, allowing Guatemala to pass a law that will implement the Hague Convention not to stop adoptions as it has been done everywhere, but to improve the current system and to allow that more children find a family who loves them. A whole new system, that places adoptions in the hands of the bureaucrats without any regard for the care of the children, in terms of financing their stay in foster homes and in private orphanages is a recipe for disaster.