Adoption Institute Recommendations on International Adoption Regulations
Background on International Adoption Regulations
Adoption Institute Recommending Significant Changes in State Department Draft Regulations For International Adoption
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:
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:
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 has solicited public comment on the proposed regulations at two public meetings and through its website survey, and is scheduled to submit draft regulations to the State Department July 31, 2001. The State Department expects to publish proposed regulations in the Federal Register in August or September, 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