Institute Testimony Before House International Relations Committee, May
of Cindy Freidmutter, Esq.
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,
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:
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:
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.
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.
Date Posted: May 29, 2002
Act P.L. 106-279 §2(b)(2).
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,
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.
Date Posted: May 29, 2002
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.
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.
The Adoption Institute urges the State Department to fundamentally improve the quality of international adoption practice by:
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:
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
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:
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:
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 Summer 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.
© 2001 The Evan B. Donaldson Adoption Institute