Acton Burnell's preliminary draft regulations (draft regulations) fail to address, and in some important ways undermine, many of the State Department's key mandates in implementing the Hague Convention (Convention) and the Intercountry Adoption Act (IAA). The Convention and IAA reflect a broad international and national consensus for regulation of adoption practitioners in order to improve the quality, ethics and reliability of international adoption services. Unfortunately, the draft regulations do not implement the IAA or the Convention in a manner that will achieve these goals.

In drafting the regulations, Acton Burnell has failed to clearly articulate the following components of an effective regulatory system:

• Enforceable standards that will govern international adoption practice.
• Oversight of the financial aspects of international adoption to eliminate "unreasonable" fees and unethical financial incentives.
• Regular monitoring of compliance with practice standards and financial rules.
• Timely enforcement to put poor quality providers out of business.
• Education of the public about how the system should operate, and the comparative performance of accredited agencies/approved persons.
• Reliable reports to the State Department and Congress about systemic performance, and the efficacy of the accrediting entities to improve system quality.

If the regulations are not substantially changed, children will be harmed in very real and lasting ways. Unethical practitioners, even if they are a small minority of adoption providers, have a disproportionate impact on public perception of adoption. Without a positive public perception of international adoption in the U.S. and abroad, large numbers of children will likely lose their only hope of having a permanent loving family. Moreover, every year tens of thousands of birth and adoptive families make decisions about international adoption, and children's lives are inexorably changed. These decisions must be made within a system that is focused on the best interests of children and their birth and adoptive families, not the financial rewards of placement.

The IAA places broad responsibility with the accrediting entities to conduct 1) accreditation and approval, 2) oversight, 3) enforcement and 4) data collection, record maintenance and reporting. Of all their duties, the accreditation and approval responsibilities are the least important to achieving the goals of the Convention and the IAA. An accreditation review of accredited agencies/approved persons once every three or four years will not have a fundamental impact on system quality. The regulations should instead be focused on the monitoring, enforcement and reporting functions with two goals in mind: setting meaningful and enforceable standards that will fundamentally improve the quality of adoption practice, and creating an effective, efficient system to monitor and enforce compliance by accredited agencies and approved persons.

Yet the draft regulations focus almost exclusively on the first duty--accreditation and approval--while exempting many organizations large and small from any actual review by the accrediting entities for years to come. And the accreditation process contemplated by the draft regulations is fundamentally flawed. Accreditation and approval should be linked to compliance with international and national standards. Instead, the regulatory scheme largely focuses on accreditation techniques that in other industries, such as health and education, are primarily used to measure an organization's quality and capacity against its own past performance, not adherence to industry regulatory standards. Quality assurance mechanisms (that measure whether practitioners are setting and achieving self-selected quality improvement goals), and agency-specific policy and procedure requirements will not remedy the problematic systemic practices that are the focus of the Convention and the IAA.

Acton Burnell has received considerable input about the poor quality, unethical and sometimes horrific experiences of prospective adoptive parents. The draft regulations do not in any effective or coherent way place appropriate legal responsibility for negligence with the accredited agencies/approved persons. They do not require that adoption contracts include the Convention, statutory and regulatory standards and disclosures. The draft regulations should be rewritten to insure that all legal agreements signed by birth and adoptive parents describe the legal safeguards and protections afforded triad members, and include all information relevant to making an informed decision about selecting a service provider.

The Evan B. Donaldson Adoption Institute (Institute) has attached its May 24, 2001 Recommendations on Implementing the IAA. Below are the Institute's general and specific comments with respect to the draft regulations.

Overall Deficiencies with the Draft Regulations

The Draft Regulations:

1. Do not provide comprehensive and enforceable practice standards for the adoption industry.
2. Place too much emphasis on accreditation as a means of overseeing adoption providers, while failing to develop effective procedures to monitor performance, review and resolve complaints, enforce standards, gather and report data, and educate the public.
3. Do not establish responsibility for monitoring adoption fees according to the Convention and IAA standards.
4. Provide virtually no consumer protections for birth and adoptive parents in contrast with routine and common safeguards in other industries:
• Do not require accredited agencies/approved persons to assume legal liability for acts of subcontractors and agents in other countries;
• Fail to create standards for adoption contracts and other legal agreements;
• Do not require the provision of accessible, comparable information to the public on accredited agencies'/approved persons' performance; and
• Fail to include Ombudsman services to resolve individual complaints and research patterns of complaints within the accrediting entities' scope of work.
5. Do not create a framework for improving the quality of health and genetic information provided at the time of the placement and for gathering additional information in the future.
6. Fail to define specific timeframes, set documentation requirements and establish monitoring responsibility to insure that a diligent search is conducted for U.S. parents before a U.S. resident child is placed for adoption in another country.