Casa Alianza Presentation to the United Nation’s Committee on the Rights of the Child

[excerpt applicable to Guatemala Adoptions complete document below]

In Guatemala there are two types of adoptions: private adoptions and court adoptions. The former, which accounts for close to 99% of all adoptions, solely requires a mother to go to a notary public and agree to give up her child. The latter, are adoptions monitored by the courts for children who have been declared in abandonment.

Guatemala fails to comply with Article 20 of the UN Convention on the Rights of the Child which states: “A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.” The violation of Article 20 by the State of Guatemala occurs during many of the adoptions.

The government has also failed to exercise “special protection and assistance” to ensure that the child´s best interests be the “paramount consideration” in the adoption process, as required by CRC Article 21. Although Article 21 suggests that international adoptions are to be used as an “alternative means of a child´s care” when intra-national adoptions are not available, Guatemala permits a situation that encourages adoption lawyers to prefer  international adoptions to intra-national adoptions. Lawyers charge as much as US$ 25,000 per child for an international adoption, but are only able to charge around US$ 300 per child for intra-national adoptions.xvi Indeed, the UN Special Rapporteur on the Sale of Child, Child Pornography and Child Prostitution, Ofelia Calcetas, acknowledged that 95% of all adoptions in Guatemala are international.xvii To quantify this percentage, a UNICEF report recently stated that “between 1,000 and 1,500 babies and children are 'trafficked' every year”.xviii As a result of such statistics, the United Nations Special Rapporteur stated that “the best interest of the child is totally ignored, and the adoption becomes purely a business transaction.”xix

Guatemala also fails to protect children’s identities, thereby violating Article 8 by failing to provide mechanisms to ensure the preservation of adopted children´s cultural identities. Article 8 stipulates that individual states have a responsibility to "respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference . . .” Indeed, the 1995 Committee of the CRC that reviewed Guatemala´s first country report noted that there were deficiencies in the birth registration system and as a result children may not be recognized as persons, may be denied an education and health services. These children also fail to receive protection from illegal adoptions and trafficking of children. The Special Rapporteur echoed these same concerns in her January 2000 report.

To exemplify the registration problem, the Special Rapporteur was told of a woman who, within a two and a half year period, “legally” gave birth to 33 children.

Such flagrant violations of this Article also raise serious doubts as to whether Guatemala is fulfilling its responsibilities under Article 8, Paragraph 2. This clause stipulates that, "where a child is illegally deprived of some or all of the elements of his or her identity, State Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity".

Guatemala also fails to ensure that children are not separated from his or her parents against their will", as required by Article 9. The UN Special Rapporteur noted that some illiterate pregnant women are drugged or tricked into providing a thumbprint on a blank piece of paper that is subsequently made into legally binding papers that become authorization for adoption.

Additionally, the UN Special Rapporteur also reported that child traffickers will threaten mothers or literally steal children. For example, the Special Rapporteur was told of a pregnant prostitute who was threatened with death by “the owner of the bar, who worked with a midwife in child trafficking, where she worked if she did not give up her baby for adoption.” Additionally, the Special Rapporteur added that hospital employees are sometimes involved in baby-stealing. That is, the Rapporteur noted that because poor mothers cannot return daily to the hospital, hospital staff sometimes declares children abandoned as part of a child trafficking scheme.

In spite of the fact that Guatemala´s 1995 country report regarding the CRC acknowledged the creation of illegal adoption operations in the country, Guatemala still has not implemented legislation nor ratified the Hague Convention to stem this problem. As a result, Guatemala violates Article 11 that holds, "State Parties shall take measure to combat the illicit transfer and non-return of children abroad.” For example, the Child and Adolescent's Code, which the Special Rapporteur described as "the most important draft legislation in Guatemala concerning children," has been bogged down in Congress since 1996.

Despite the new code being approved by the Guatemalan Congress four years ago, it’s implementation has been continually suspended. The right wing FRG party – which assumed the Presidency of Guatemala and the majority in Congress in January of this year – permanently suspended the new Children and Adolescent’s Code in early 2000. Current Guatemalan legislation does not typify the trafficking of children as a crime, therefore reducing the risk of baby traffickers to zero. We can only accuse the traffickers of the theft of a baby, which has different legal implications. Shamefully, in Guatemala you go to jail for a longer period of time for stealing a car than for stealing a baby!

The new Children’s code requires judges to begin each adoption case from the basic “principle that the interests of the child are best served by keeping [the child] with its own family and in his or her own country.”

The main opponents of the Code, according to the Special Rapporteur are "people involved in intercountry adoptions who feared that greater protection could interfere with their economic interests.”

With the introduction of the new Child and Adolescent Code in Guatemala, trafficking of children is typified as a crime and carries a 6 year sentence.

Additionally, Guatemala has also failed its international responsibility to ratify the Hague Convention on Inter-country Adoptions, telling the UN Special Rapporteur that this was “because the government did not have a certified copy of the Convention”.

Guatemala implicitly endorses child trafficking by its lack of oversight regarding private extrajudicial adoptions. Extrajudicial adoptions only require approval by a court appointed social worker and the Attorney General´s Office. These social workers, however, are not subject to court supervision and are often involved in some illegal activity with the lawyer handling the adoption case. Additionally, the Office of the Attorney General also fails to serve as a safeguard for children because the office simply reviews adoption documents presented to it rather than looking into how the papers were obtained.xxviii Therefore, because these extrajudicial adoptions constitute 99% of all Guatemalan adoptions

such a lack of supervision serves as an implicit government endorsement of child trafficking. Indeed, the Special Rapporteur´s report highlights this point in stating that “in the majority of cases, international adoption involves . . . 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.”

: Casa Alianza is taking positive strides to combat illegal adoptions. First, the organization is currently involved in legal action against 18 lawyers – including a juvenile judge and the wife of the former President of the Supreme Court for participating in anomalies in the adoption process and in child trafficking rings.

Casa Alianza’s Legal Aid Office in Guatemala has also helped many mothers, including Elivia Ramírez Caño in their successful legal battles to “recover” their children after they were tricked into authorizing their child’s adoption.

Additionallly, Casa Alianza is raising international awareness by providing information on its website (http://www.casa-alianza.org) concerning the vast problem of illegal adoptions in Guatemala.

- Casa Alianza echoes the Special Rapporteur’s recommendation that Guatemala ensure that international adoptions be used as a last resort to intra-national adoptions rather than constitute the norm. In pursuit of this goal, Casa Alianza endorses Ms. Calcetas-Santos’ suggestion as UN Special Rapporteur that Guatemala pass long-delayed laws regulating adoptions – including the Children and Adolescent’s Code - and ensure the elimination of private adoptions.

- Additionally, Casa Alianza urges Guatemala to ratify the Hague Convention on Inter-Country Adoptions.

- Casa Alianza pleads to the Guatemalan state to require DNA testing of all children to be adopted along with the mother giving up the child to an adoption agency during international adoptions. This would ensure that the biological mother is indeed the individual giving up her real baby for adoption.

xvi Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 21. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xvii Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexual-exploit/ONU/index.shtml .

xviii Harris, Bruce. Presentation (Part I) to the 24th Session of the United Nations Working Group on Contemporary Forms of Slavery, Geneva, Switzerland. June 23 – 25, 1999. Casa Alianza website: http://www.casa-alianza.org/EN/lmn/docs/19990623.00293.htm .

xix Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 21. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xx Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Pages 6-7. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxi Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 23. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxii Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 9. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxiii Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 10. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxiv Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 7. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxv Chapman, Matthew. “Buy Buy Baby”. The Guardian. August 27, 1999. Casa Alianza website:

http://www.casa-alianza.org/EN/human-rights/illegal-adop/press/990827.shtml .

xxvi Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 7. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxvii Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 7. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxviii Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page22 Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxix Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 22. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .

xxx Rights of the Child. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos. Addendum. Report on the mission to Guatemala. Page 6. Casa Alianza website: http://www.casa-alianza.org/EN/human-rights/sexualexploit/ONU/index.shtml .