Thursday, October 14, 2010

The Response of the US Department of State

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Friday, October 8, 2010


The recent announcement that the U.S. will not participate in the Guatemalan Pilot Program is just another nail in the coffin of Intercountry Adoption. The incredible HYPOCRISY that governs this decision is - while not surprising - still totally infuriating. The U.S. DOS promoted the passage of the current adoption law in Guatemala, despite vigorous opposition by adoption advocates with knowledge of Guatemalan politics and realities. Prior to the U.S. intervention in promoting this law, the law was - in various incarnations - voted down over a period of 6 years. It was promoted intensely by UNICEF. The Hague Treaty was passed "illegally" in Guatemala in 2003 and its passage was OVERTURNED by the Constitutional Court in Guatemala in Sept.2003. In 2006, the State Department announced that "they" were considering Guatemala to still be party to the Hague, despite earlier acknowledgements that Guatemala's Constitutional Court had ruled that Guatemala's constitution did not allow them to participate in a Treaty when they had not participated in the Conventions leading to the Treaty (as Guatemala had not been party to the Conventions leading to the Hague Treaty). Once the Department of State convinced the Guatemalan Congress, in a series of "smoke and mirrors" arguments to reinstate the Hague Treaty, they also convinced them to pass the adoption law, which eliminated the Notarial Law. All new adoptions from Guatemala ceased on Dec.31, 2007. Though the new law has a "grandfather clause" covering all adoptions initiated under the Notarial process before December 31, 2007, the Guatemalan authorities have not honored the Grandfather clause in many ways, with thousands of adoptions in process being delayed over the last 3 years, and still hundreds are being obstructed, many without legal basis. The U.S. Department of State has been noticeably inactive in its lack of advocacy for these adoptions initiated by U.S. citizens prior to the law changing.

In my opinion, the Hague Treaty governing intercountry adoption has been a tool used by first world governments to limit or eliminate adoptions of children from developing countries. There seems to be a collusion between the governments, Unicef, and the officials at the Hague to promote the Treaty as being in the best interests of children, while nothing is done to actually assure for the alternative care of those children who are not being adopted, nor are adoptions in any serious numbers being promoted.

In Guatemala, an alternative law was presented to the Congress in 2007, which would have regulated the adoption services in accordance with the mandates of the Hague Treaty, while developing a public-private partnership and still maintaining the social services; but this law was not acceptable. Now, in Guatemala, there is minimal public support for children, and private support - which in the past has accounted for 90% of support for children - is dwindling each day, as much of it was dependent on adoptions.

The first world governments, like the U.S., who have insisted on the Hague Treaty in these countries, have an obligation to help the impoverished governments, like Guatemala, develop acceptable and child centric systems. When the Department of State was trying to get U.S. adoption organizations to support the Hague Treaty, they committed to helping developing countries comply with the Treaty. What happened to those promises? More important, what is actually happening to the children who cannot be adopted?

Hannah Wallace,
Focus On Adoption

Friday, September 3, 2010

Letter to the Office of Children's Issues regarding their post about Asociacion Primavera

                                                                                                         Guatemala, September 3, 2010
Bureau of Consular Affairs
Office of Children Issues.

Dear Ladies and Gentlemen,

On August 27, 2010, you posted on your website   at  an update about the situation of the orphanages in Guatemala, whose children were taken away by the authorities.  Of all the orphanages, names are mentioned only with regard to Asociación Primavera. Since my name is mentioned there and the accusations stated in your communication against both attorney Alma Beatriz Valle de Mejia and myself, are falsely stated, I want to express my concern about the spreading of false information by the US State Department. The presumption of innocence is a constitutionally protected right, in your country as well as in mine, and that has been totally ignored in this statement.

A year ago, seventeen children, who were very well cared for at Asociación Primavera, were illegally removed from the only home they had known, by employees of the PGN, the Ministerio Publico and the Consejo Nacional de Adopciones. They had no court order and no legal grounds to remove the children, and when they could not obtain a proper authorization, they took the children anyway. A full account of the kidnapping of these seventeen children is recorded at the website of Asociación Defensores de la Adopción (ADA) at   The process to challenge the illegal removal of the children is currently pending before the Supreme Court of Guatemala. It has been an uphill battle this past year, and the casualties have been the children whose contact with their adoptive families was abruptly severed by the abuse of power of people who seem to have no interest in the welfare of the children.

The post  mentioned above stated that the judge of Escuintla, who approved many of the abandonments from hogar Primavera,  was recently stripped of his immunity, which implies that the abandonments he ruled on could be challenged. This piece of misinformation may bring undue anguish to the waiting families. The fact that the Supreme Court authorized that the judge of Escuintla may stand trial, does not mean that the abandonments he ruled on are illegal, much less that the adoptions of those children are also illegal. Some of those abandonments were upheld by the Court of Appeals of the Childhood and Adolescence and even one of them by the Supreme Court itself

On December 16, 2009, the Ministerio Publico obtained a warrant for my arrest, accusing me of “traffic of people, use of forged documents and illegal association.” None of those accusations have the slightest foundation, nor has any evidence been produced to give credence to these claims. The only reason I was linked to the process, is because the judge, as she candidly confessed at the hearing, “has not a clue about the Law of Minors” and could not understand the arguments that we presented to her. In the case in question, there was not even an adoption, because the birthmother regained custody of her child that she willingly placed for adoption in the first place. Furthermore, this same birth mother had previously filed a petition to the court to dismiss this case based on the voluntary relinquishment of her daughter, because she reasoned that nobody should be blamed for her decision and much less those who provided loving shelter and care to her daughter. Even though it is true that I was allowed to post bail and was given house arrest, you must clarify that “house arrest”, does not mean the same thing in Guatemala as it does in the United States. Here the person on house arrest can travel freely all over the country, needing judicial authorization only to cross the international borders. Yet this distinction is left out of your report, implying that things are much worse than they are.

The email states that I was arrested “on charges of irregular adoptions”, which is incorrect. The charges were of “traffic of people”, which must be known by those who wrote that email, involves exploitation, through forced sexual acts or forced labor. The subject is explained in the report about the Traffic of People, issued by the Department of State of the United States of America in June 2010. In the part pertaining to Guatemala, it clearly says: “The government maintained a small prosecutorial unit to investigate and prosecute human trafficking cases; approximately 60 percent of this unit’s investigations focused on illegal adoptions, which do not fall within the international definition of human trafficking.” (emphasis added).

There is a difference between “irregular adoptions”, as it was stated in article 194 of the Criminal Code, before it was modified by the law passed in April, 2009, and “illegal adoptions” as it is named in the US DOS report. “Traffic of people for irregular adoption” as it was stated in Article 194 of the Criminal Code, means to adopt a child and instead of treating him/her as a son or daughter, the adoptive parents enslave such child. It is obvious that there is a great difference between the crime of “exploitation, including forced prostitution, sexual exploitation, begging, forced labor or services, marriage for servitude, irregular adoption and slavery or any other kind of slavery”, and the crime of “to illegally process an adoption.” Yet, the Ministerio Publico wants everybody, and especially the judges, to believe that both are the same. This is the same technique, created by Joseph Goebbels, the Nazi Minister of Propaganda, which employs simply repeating the same lie enough times until it is perceived as the truth. Certainly the US wants no part in that kind of manipulation.

The State Department states in its report about Human Traffic in Guatemala:
Credible reports from international organizations, NGOs, and several government officials indicated that corrupt public officials continued to impede anti-trafficking law enforcement efforts and facilitated trafficking activity by accepting or extorting bribes, falsifying identity documents, leaking in formation about impending police raids to suspected traffickers, and ignoring trafficking activity in commercial sex sites.” How can the people of our investigative bodies ignore these real human traffickers, and instead focus their efforts on discrediting the people who work to give homes to abandoned children? And they use as their excuse this misuse of the wording of the law. Surely this will go down as a shameful page in the history books of Guatemala and for its complicity, the United States as well.

It is absolutely unconscionable to simply quote “the press” as a source of information to make the statement that attorney Alma Beatriz Valle Flores de Mejia and I formed a “network engaged in illegal adoptions in 158 cases of irregular adoptions in 2008 as part of her involvement with Asociación  Primavera.” Not only was that information never published in any newspaper, but it is not true. None of the adoptions of the children at Asociación Primavera is illegal, as the US Embassy can attest, because they had the opportunity to review all the necessary documents when they were presented in order to obtain the US visas for the adopted children. There are only two criminal cases regarding Asociación Primavera children. In one of them, Alma Beatriz Valle Flores de MejIa is not named as a defendant; and in the other, I have not been linked to the process yet, as I still have to be summoned to a hearing to give my deposition, and again, both cases lack any legal or factual grounds.

I am appalled by the way the communication posted in the Internet to the waiting families portrays us, when the people who wrote it must know, or at least should know that an adoption is a legal process, duly overseen by the courts and by the PGN, and that those of us who work to make the adoptions possible do not deserve to be treated as criminals. All of our work has been done ethically, professionally and certainly legally and we are entitled to our constitutional rights of due process and presumption of innocence to be respected by the Department of State of the United States and  to be treated by the US people with respect.

For many years I have been an advocate of adoption, as a way to give a family to those children who do not have one. I never thought that such a noble cause could be criminalized as has happened here in Guatemala and that the children could be sent to a prison, where their right to a family is daily ignored, even though they have families in the United States who are waiting for them. It would be an act of human kindness on the part of both governments, to stop using the children as hostages and allow them to join their forever families. To prolong the separation of the children is causing unnecessary grief to all parties involved, but especially to the children.

A brief research would prove the veracity of my statements. After you do so, I would appreciate a correction of the above mentioned statements. I thank you in advance for doing what is fair.

Best regards,

Susana Luarca, Attorney at Law,  Guatemala City.