Loyola University Chicago School of Law, J.D. 2019
Hague Conference on the Protection of Children and Co-Operation in Respect of Intercountry Adoption Convention is an international treaty agreement protecting the best interests of children in international adoptions. The Hague Convention (“Convention”) establishes standards of practice that are adhered to by the member countries. The overall goal is to protect children in the international adoption process while preventing the abduction, exploitation, sale and trafficking of children. The convention applies to any US citizen who is a US resident in the adoption of any child from certain countries.
The United States’ historical background in the conference
The United States signed the Convention in 1994, and President Clinton gave the Convention to the U.S. Senate for ratification in 1998. Both Houses of Congress passed bills for implementation of the Convention in the Intercountry Adoption Act of 2000 (the IAA), Public Law 106-279, which President Clinton signed into law on October 6, 2000. The United States ratified the Hague Convention on Intercountry Adoption on December 12, 2007, in the Netherlands. However, it did not officially come into force for the United States until April 1, 2008.
Forty-eight articles make up the treaty. While Article 1 of the Convention establishes its objectives, Article 2 explains that the Convention applies to children who are going from one contracting state (their “state of origin”) to another contracting state (the “receiving state”) after being adopted in their state of origin by a person from the receiving state. Under Article 4(b), the Convention requires “competent authorities” to be established in the state of origin to determine whether an intercountry adoption is in the child’s best interest. The Department of State is the U.S. central authority for the convention. Under Article 5, the receiving state must determine whether the prospective adoptive parents are eligible and suited to adopt. In Article 14, “persons habitually resident in a contracting state, who wish to adopt a child habitually resident in another contracting state, shall apply to the central authority in the state of their habitual residence”, which, in the United States, is the Department of State. Article 15 states that if the central authority of the receiving state is satisfied with the applicants and determines they are suited to adopt, that central authority shall prepare a report for the central authority in the state of origin with: information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children whom they would be qualified to care for. A similar document shall also be prepared by the receiving state and include any special needs of the child under Article 16. The last two articles, Articles 31 and 32, establish that no one shall derive improper financial or other gain from an activity related to an intercountry adoption. Only costs and expenses, including reasonable professional fees of persons involved in the adoption, may be charged or paid.
How to comply – requirements
The step by step process provided by the U.S. Citizen and Immigration Services (USCIS) delineates the procedures that potential adoptive parents must follow in order to procure an adoption from the State of Origin:
- Choose a Hague Accredited Adoption Service Provider (ASP)
- Obtain a home study from someone authorized under a Hague adoption home study
- Apply to the USCIS before adopting the child or accepting a placement for determination that one is suitable for inter country adoption
- USCIS has to approve the application then work with the adoption service providers to obtain a proposed adoption placement
- File a petition with the USCIS to make sure the child is eligible to immigrate to the US based on the proposed adoption
- Adopt the child or obtain custody of the child to then adopt them in the US
- Obtain an immigrant visa for the child
- Bring child not the US with the visa
In order to be eligible to adopt, the adopter must:
- Be a US citizen
- Reside in the US
- If married, the spouse must sign each form and have the intent to adopt too
- If not married, you must be at least 24 years of age when you file your forms
The child must be
- Under the age of 16 when filing the initial forms
- Habitually rested in a convention country
- Be eligible for inter country adoption by the Central Authority of that country and have obtained all the necessary consents for adoption
There are separate requirements that must be followed if the child is 16-18 years of age.
The US is not able to complete Convention adoptions from Bolivia, Cambodia, Cape Verde, Cote d’Ivoire, Fiji, Guatemala, Kazakhstan, Kenya, Montenegro, Namibia, Rwanda, Senegal, Swaziland, Vietnam and Zambia. Guatemala is a party to the Convention, but does not follow the standards of the Convention at this time.
Only ASPs that have been accredited or approved on a Federal level may offer certain key adoption services for Convention adoptions. ASPs are normally tasked with identifying a child for adoption and securing an adoption, obtaining the required consent for termination of parental rights and procuring the needed approval for adoption, conducting a home study and reporting on prospective adoptive parents or a background study and report on a child, making non-judicial determinations of a child’s best interests and of the appropriateness of an adoptive placement, watching over a case after a child has been placed with potential adoptive parents until final adoption and assuming custody and providing childcare or any other social service, when necessary, because of a disruptive pending alternative placement. Working with an Adoptive Service Provider goes into further detail. In Convention adoptions, prior to the final adoption or grant of custody in the child’s country, USCIS determines whether a child is eligible to immigrate to the U.S. as a “Convention adoptee.” An ASP must be accredited or otherwise authorized to provide adoption services in connection with a Hague adoption in order for the provider to assist the prospective adoptive parent(s) with a Hague adoption.
Why compliance is important
The Convention establishes standards of practice and creates a system of cooperation among countries that have signed the treaty in order to complete safe and successful adoptions. In an age of globalism, the Convention establishes an avenue for compliance that is set across multiple countries. This uniformity helps establish transparency in international adoptions. As of August 2013, 89 countries are parties to the Convention and this number will grow. With a central governing treaty amongst all the parties to the Convention, there are sure to be more streamlined, effective ways to establish safe and successful intercountry adoptions. The Better Business Bureau is a good resource for finding ASPs since they conduct ratings. Similar to a grading rubric, these ratings help potential adoptive parents or those who wish to terminate their parental rights find an agency that is right for them. Illinois has an accredited adoption agency called Angel Adoption, Inc. Although this agency only conducts domestic adoptions, it may nonetheless be a great resource for prospective adoptive parents as they start their journey toward parenthood.