Testimony
of Cindy Freidmutter, Esq.
Executive Director, Evan B. Donaldson Adoption Institute
On "International Adoptions: Problems and Solutions"
Before the House Committee on International Relations
May 22, 2002
Thank you for inviting me to
testify about how the federal government can effectively implement the
Hague Convention and the Intercountry Adoption Act (IAA) to improve international
adoption services for adoptive families, birth parents and adopted children
and ensure a more ethical adoption environment internationally. I represent
the Evan B. Donaldson Adoption Institute (Adoption Institute), a not-for-profit
national policy and research organization devoted to improving the quality
of adoption policy and practice, and the public's perception of adoption.
Throughout the regulatory drafting process, the Adoption Institute has
advocated that the State Department tailor the regulations to address
the most serious problems with international adoption. Unfortunately,
the current draft regulations will not fulfill a primary purpose of the
IAA --"protect[ing] the rights of, and prevent[ing] abuses against
children, birth families, and adoptive parents involved in adoption."1
International adoption has
evolved into a potentially lucrative and largely unregulated business.
Over the last decade, the number of international adoptions by Americans
has increased threefold from about 6,500 in 1992 to over 19,000 in 2001.
Accurate information is not currently compiled by any reliable source
about the aggregate fees charged for international adoption services.
One can reasonably estimate, however, that U.S. adoptive parents spent
close to $200 million in 2001 for international adoption services.2
As the number of international adoptions has grown, there has been a corresponding
sharp escalation in the number of individuals and agencies, here and abroad,
involved in facilitating the adoption process. In 1989, only a handful
of adoptions took place in Russia and China, but by 2001, these two countries
accounted for nearly half of all international adoptions by Americans.
By the end of the 1990s, there were 80 U.S. agencies active in Russia
and 150 active in China.3
The market
forces inherent in international adoption pose a potential threat to the
welfare of children, as well as their birth parents and prospective adoptive
parents.
Evidence and experience highlight
three critical issues with international adoption services provided in
the United States, which the Adoption Institute urges the State Department
to address in the IAA regulations.
First, U.S. providers should
be directly responsible for all financial transactions with and payments
to their contractors and agents in other countries, and should be accountable
to families who rely on their representations about fees.
U.S. families who adopt internationally
are generally told by their agencies to carry substantial amounts of cash
abroad to pay fees, a dangerous and sometimes illegal practice. A recent
Adoption Institute survey of over 1,600 American families who adopted
internationally through U.S. agencies found that three out of four families
were required by their agencies to carry cash to their adoptive child's
country of origin to pay adoption service fees, with most directed to
bring $3,000 or more. And 11% of all respondents stated that when they
were overseas, agency facilitators asked them to pay additional fees that
were not disclosed by the agencies.
It is logical to presume that
undocumented cash transactions by American adoptive families are a major
factor in fostering unethical practices overseas. The current draft regulations,
however, will not curb this practice by only requiring "an official
and recorded means of fund transfer, whenever possible."4
In order to
reduce financial incentives that may lead to illegal and unethical practices,
financial transactions must be transparent and recorded. IAA regulations
should require providers to develop an official and recorded means of
fund transfer, unless the State Department issues a written determination
that it is not possible to do so in a specific country.
Second, adoption service
contracts between providers and prospective adoptive families should create
a clear and predictable business relationship by enumerating in plain
language the services to be provided, the fees to be paid, the legal responsibility
of the adoption agencies for staff, agents and subcontractors, the complaint
resolution processes and other critical information.
Currently, U.S. families adopting
internationally are not afforded basic consumer legal protections. While
many parents who adopt internationally sign a contract with their adoption
agencies, these "contracts" too often fail to create a fair
and clear business relationship with respect to services, fees and legal
responsibility. Consequently, families have no recourse when agencies
do not provide promised services, give them inaccurate information, or
increase the fees while the adoption is in process, problems which happen
to a significant minority of families.
Of the 1,600 families who responded
to the Adoption Institute's survey,
- 15% reported that their
agency withheld information or told them inaccurate information about
the child,
- Another 15% said their
agency withheld information or told them inaccurate information about
the adoption process, and
- 14% said their adoption
cost more than the agency told them it would cost.
The regulations should specify
the type of information that must be included in adoption service contracts.
Contracts protect parents and providers alike, providing clarity about
the parties' respective roles and responsibilities, and guidance to courts
in the event of disputes. While the draft regulations require providers
to disclose "fully and in writing" their policies and practices,
inexplicably they do not mandate that providers include that information
in adoption service contracts.5
Similarly,
the draft regulations require that some, but not all, fee information
be disclosed in contracts.6
The bottom
line is that prospective adoptive parents should not have to comb through
the Code of Federal Regulations to insure that their agencies are providing
legally required information and services at agreed-upon fees.
Third, prospective adoptive
parents should have access to objective information to guide their choice
of international adoption service providers.
One of the simplest and most
effective ways of accomplishing a primary purpose of the IAA --"prevent[ing]
abuses against . . . adoptive parents"7
-- is to provide
them with the information they need to make informed choices about providers.
Information about service quality and provider performance would likely
enhance prospective adoptive parents' ability to make educated decisions,
thereby improving their satisfaction rates. Currently, a significant minority
of parents who responded to the Adoption Institute survey were not happy
with their agencies performance:
- 13% were not satisfied
with the services they received from adoption agencies.
- 14% would not recommend
their agency to other families.
The draft regulations do not
address consumer education in an effective manner. There is no requirement
that an independent entity publish comparable performance information
that would help prospective adoptive families make informed choices. Publication
of such information would also create a strong incentive for "weaker"
providers to improve service quality and performance. The regulations
should mandate that service quality and outcome data generated by the
accreditation process be used to educate prospective adoptive families
about provider performance in the following ways:
- Publication of a consumer
handbook explaining the regulation of providers, and accreditation and
complaint processes,
- Creation of an annual consumer
report card, available on the Internet and in print, that evaluates
providers' compliance with the regulations and key quality indicators,
and
- Providing access on the
Internet and in print to provider-specific comparable service quality,
performance and cost information.
The Adoption Institute has
also recommended that the State Department adopt the following additional
strategies to fundamentally improve the quality of international adoption
practice. By incorporating these proposals into the regulations, the Adoption
Institute believes that the federal government will dramatically improve
actual experience with and public perception of international adoption.
- Identify poor quality providers
in a timely manner, and create a regulatory enforcement climate where
they either meet standards or lose accreditation.
- Require providers to be
legally responsible to the families who contract with them for acts
of their agents and contractors in the United States and abroad.
- Mandate that providers
carry liability insurance that reflects the risk of work conducted by
all its agents and contractors.
- Ensure prospective adoptive
families receive access to the best available information about referred
children.
- Guarantee adopted persons
and their families access to their adoption records to the fullest extent
permitted by the Hague Convention and IAA.
- Create an Ombudsman or
similar independent entity that enables families engaged in international
adoption to report and resolve complaints involving providers' regulatory
noncompliance. An Ombudsman would also:
- Provide consumer education
about the complaint process.
- Facilitate timely resolution
of consumer complaints.
- Routinely analyze complaint
patterns and outcome data to identify providers that are in violation
of regulatory standards.
- Advise Congress and
the State Department about ongoing problems, and the impact of the
regulations and accreditation process on improving service quality.
I appreciate the opportunity
to share the Adoption Institute's perspective on improving international
adoption services. I hope you will allow me to submit for the record the
Adoption Institute's recent more detailed recommendations to the State
Department on the IAA regulations.
May 29, 2002
1
Intercountry Adoption
Act P.L. 106-279 §2(b)(2).
2 The estimate conservatively
assumes an average of $10,000 per finalized adoption for services provided
domestically and overseas (not including orphanage "contributions",
travel costs and home studies).
3 Freundlich, M, Adoption
and Ethics, The Market Forces in Adoption, An Evan B. Donaldson Adoption
Institute Report published by CWLA Press (2000), 43.
4 Acton Burnell Final Draft
Regulations Part 96.13 I.3.
5 Regulations Part 96.13
H.1.
6 Regulations Part 96.13
I.
7 IAA § 2(b)(2).
ADOPTION
INSTITUTE INTERNATIONAL ADOPTIVE PARENTS' SURVEY
ILLUSTRATES NEED FOR SAFEGUARDS IN FEDERAL REGULATIONS
The Adoption Institute recently
conducted a survey of families who adopted children internationally in
the past five years to identify problems they may have encountered with
their adoption agencies. The survey responses identified two issues -
problems with financial arrangements between agencies and families, and
concerns about the accuracy of information provided by agencies to adoptive
parents. The Adoption Institute is using the survey results to advocate
that the State Department incorporate needed safeguards in the new federal
regulations for international adoption service providers.
Of the over 1,600 families
who responded,
- 13% were not satisfied
with the services they received from adoption agencies, with16% of parents
who adopted from Russia reporting dissatisfaction compared with 6% of
those who adopted from China.
- 14% would not recommend
their agency to other families, with 19% of parents who adopted from
Russia reporting they would not recommend their agency compared with
8% of those who adopted from China.
- 14% said their adoption
cost more than the agency told them it would cost. Russian adoptions
were more likely to exceed agencies' estimated costs (17%) than Chinese
adoptions (9%).
- 15% reported that their
agency withheld information or told them inaccurate information about
the child and the adoption process. 21% of families adopting from Russia,
and only 8% from China, reported that their agency withheld information
or told them inaccurate information about the child.
- Almost three-quarters of
the families reported that agencies asked them to carry cash overseas
to pay fees, with most carrying $3,000 or more.
The Adoption Institute has
recommended to the State Department (http://www.adoptioninstitute.org/policy/hagueregs.html)
that agencies be required to follow strict standards with respect to fees
charged and information provided about children available for adoption
and be prohibited from requiring adoptive families to carry cash abroad
to pay fees unless there is no other alternative. It is also pushing for
consumer education about providers' performance on these issues so prospective
adoptive parents have the tools they need to make informed choices about
which agency to use.
It is expected
that the State Department will publish proposed regulations in the Federal
Register this summer. To advocate for changes to the Intercountry Adoption
Act regulations, call or fax your Congressional representatives and ask
them to urge the State Department to accept the Adoption Institute recommendations.
Support of Congressional Members on the foreign relations committees is
crucial.
May 29, 2002
Adoption
Institute Recommending Significant Changes in Final Draft Regulations
For International Adoption
The final draft regulations prepared by Acton Burnell for the State
Department1 reflect improvement from earlier
drafts, but still do not comprehensively address the longstanding problems
with international adoption services. Given this unique opportunity to
improve practice, The Evan B. Donaldson Adoption Institute (Adoption Institute)
is submitting additional recommendations for full implementation of the
Hague Convention on Protection of Children and Cooperation in Respect
of Intercountry Adoption (Hague Convention) and Intercountry Adoption
Act (IAA) to "ensure that intercountry adoptions take place in the best
interests of the child" and that strong protections are put in place to
"prevent the abduction, the sale of, or traffic in children."2
The Adoption Institute -- a not-for-profit, national policy and research
organization devoted to improving the quality of adoption practice --
has commented on the proposed regulations throughout the drafting process.
While some of our suggestions are incorporated in the final draft regulations,
some of our most critical recommendations to improve international adoption
services have not been included.
The final draft regulations do not set clear and enforceable service
quality standards that will improve provider performance. For instance,
the final draft regulations fail to adequately delineate the legal, financial
and fiduciary relationship between adoptive families that contract for
services, and the United States agencies and persons that provide them.
Moreover, the data collection, reporting and consumer complaint procedures
in the final draft regulations are not effective oversight mechanisms
to assess adherence to regulatory standards or to detect problems in the
provision of international adoption services. For example, the regulations
do not allow for consumer education about provider performance by requiring
the accrediting entities3 to collect and publish
accredited comparable agency performance and compliance information, and
do not mandate complaint resolution that will effectively address the
problems encountered by prospective adoptive families.4
The State Department and its consultant received information from some
American families about problems with the uneven quality and ethics of
international adoption service providers. Unfortunately, the consultant
did not follow the Adoption Institute's earlier recommendation to study
families' experiences with international adoption services and the quality
of those services, so that regulations would be specifically tailored
to address the most significant problems. A survey conducted by Acton
Burnell yielded only 54 adoptive parent responses. Consequently, the prevalent
problems experienced by families have not been thoroughly elicited in
the public comment period, and are not adequately addressed in the regulations.
In order to better understand the experience of families adopting children
internationally within the past five years, the Adoption Institute has
conducted its own survey of adoptive families to gauge their satisfaction
with services, as well as the types and prevalence of problems they encountered.
More than one in ten families that responded were dissatisfied with the
services provided by their agencies, and many reported problems with disclosure
of information and financial matters.
Of the 1,159 tallied responses from adoptive families5
who received international adoption services from an agency6
in the past five years:
- 11% were not satisfied with the services they received from their
provider.
- 13% would not recommend their agency to other families.
The responses illustrate two primary problems -- financial arrangements
between agencies and families, and accuracy of information provided by
agencies to adoptive parents -- that must be effectively addressed by
the regulations.
- Almost three quarters of the families reported that they were asked
to carry cash overseas, with most carrying $3,000 or more.
- 14% said their adoption cost more than the agency told them it would
cost.
- 11% stated that overseas agency facilitators and representatives asked
them to pay additional fees in the child's country of origin that were
not disclosed by the agencies.
- 14% reported that their agency withheld information or told them inaccurate
information about the child.
- 14% responded that their agency withheld information or told them
inaccurate information about the adoption process.
The Adoption Institute urges the State Department to fundamentally
improve the quality of international adoption practice by:
- Identifying poor quality providers in a timely manner, and creating
a regulatory enforcement climate where they either meet standards or
lose accreditation,
- Prohibiting unethical practices, such as undocumented currency
transfers, that unnecessarily create incentives for unscrupulous people
in this country and abroad to buy and sell children, and
- Instituting "consumer" protections for American families who "purchase"
international adoption services.
Incorporating these recommendations in the regulations will improve
actual experience with and public perception of international adoption.
In order to achieve these objectives, the State Department should revise
the final draft regulations in the following manner:
Develop clear and enforceable practice standards that are designed
to address the identified problems with international adoption.
- Require accredited agencies/approved persons to be legally responsible
to the families who contract with them for acts of the primary agencies/persons'
agents and contractors in the United States and abroad.
- Mandate accredited agencies and approved persons to carry insurance
coverage that reflects the risk of work conducted by all its agents
and contractors.
- Require service contracts between prospective adoptive families
and accredited agencies/approved persons to describe services to be
provided, all foreseeable fees/ costs and policies/procedures.
- Instruct accredited agencies/approved persons to directly pay
their agents and contractors in other countries, and prohibit them
from requiring adoptive families to carry significant sums of cash
to the child's country of origin to pay fees and costs.
- Ensure prospective adoptive families receive access to the best
available information about referred children.
- Guarantee adopted persons and their families access to their
adoption records to the fullest extent permitted by the Hague Convention
and IAA.
Create an Ombudsman or similar body that enables families engaged in
the international adoption process to report and resolve complaints involving
accredited agencies'/approved persons' regulatory noncompliance, and provide
that service quality and outcome data generated by the accreditation process
be used to educate prospective adoptive families about the performance
of service providers.
- Make objective information about regulated providers' performance
-- such as provider "report cards" -- available through a website
and print materials to prospective adoptive families.
- Provide consumer education about the regulatory requirements
and the complaint process.
- Facilitate timely resolution of consumer complaints.
- Routinely analyze complaint patterns and outcome data to identify
providers that are in violation of regulatory standards.
- Advise Congress and the State Department about ongoing problems,
and the impact of the regulations and accreditation process on improving
service quality.
1
Acton Burnell, Final Draft of Hague Regulations for P.L. 106-279 (Oct. 23,
2001) (hereinafter Regulations), Final Draft of Convention Accreditation
and Convention Approval Procedures for P.L. 106-279 (Dec. 6, 2001) (hereinafter
Procedures).
2 Hague Convention, Chapter I, Article
1, (a)-(b).
3 See Regulations Part 96.13O & Procedures
Subpart J.
4 See Regulations Part 96.13K & Procedures
Subpart H.2.
5 The Adoption Institute has received
approximately 2,000 survey responses. The survey was not a random sampling,
but depended on self-selected responses after publication with international
adoptive parent organizations and relevant print and Internet media.
6 Because a statistically insignificant number of respondents
received services primarily from attorneys and facilitators, these responses
have not been included in the analysis.
Background on International
Adoption Regulations
The Convention on Protection of Children and Cooperation in Respect
of Intercountry Adoption (Convention) was developed at the Hague Conference
on Private International Law in May 1993. The Convention establishes standards
to curb abuses in international adoption practice by:
- Requiring a central point of contact or "Central Authority" in each
country to coordinate intercountry adoption policy and practice;
- Providing for a system of accreditation for intercountry adoption
practitioners;
- Requiring that consent to adopt be informed and freely given;
- Prohibiting "improper financial or other gain" and requiring that
only costs and expenses, including reasonable professional fees, be
charged; and
- Requiring preservation of medical and other records.
The United States signed the Convention in 1994. In 2000, Congress passed
and President Clinton signed the Intercountry Adoption Act (IAA) to implement
the Convention. The goal of the IAA (P.L. 106-279) is to protect the rights
of children, birth families and adoptive parents involved in adoptions
with other countries that are parties to the Convention. The Act designates
the State Department as the Central Authority for the United States and
includes the following provisions:
- Directs the State Department to develop implementing regulations and
contract with one or more accrediting entities;
- Delegates to the accrediting entity(ies) responsibility for accrediting/approval,
oversight, enforcement and reporting on performance of providers of
international adoption services;
- Requires that providers of international adoption services must be
accredited or approved by an accrediting entity under contract to the
State Department;
- Requires accredited and approved providers of international adoption
services to disclose policies, practices, disruption rates and fees
to adoptive parents;
- Prohibits providers from paying contingency fees to their staff and
contractors based on finalized adoptions;
- Requires the State Department to prepare an annual report on intercountry
adoptions for Congress; and
- Permits certain access to Convention records on international adoptions.
In March 2001, the State Department contracted with Acton Burnell, a
private consultant, to develop draft regulations and a scope of work for
the accrediting entity(ies). Acton Burnell solicited public comment on
the proposed regulations and submitted draft regulations to the State
Department. The State Department expects to publish proposed regulations
in the Federal Register in Spring 2002, with a 60-day public comment period.
After final regulations are issued, the State Department will select and
contract with one or more not-for-profit organizations to act as the accrediting
entities to accredit and approve U.S. agencies and individuals that provide
adoption services in other countries party to the Convention. Of the four
primary countries sending children to the United States, the Russian Federation
and China have signed the Convention, while Guatemala and Korea have not.
The United States will ratify, or formally approve, the Convention when
regulations are issued and implemented.
The Adoption Institute has submitted extensive recommendations to the
State Department and Acton Burnell proposing detailed strategies to effectively
implement the IAA and Convention.
Click here for the Adoption Institute's
complete recommendations on the Final Draft Regulations (Fall 2001).
Click here for the Adoption
Institute's further recommendations made after the June 2001 public hearings
on the Draft Regulations.
Click here for the Adoption Institute's
complete response to the Preliminary Draft Regulations (May 2001) issued
by Acton Burnell as presented at the public hearings on June 18, 2001.
Click here for the recommendations
made by the Adoption Institute on May 23, 2001.
Adoption
Survey
Links:
Final Draft Regulations
Intercountry
Adoption Act
Convention
on Protection of Children and Cooperation in Respect of Intercountry Adoption
