Hague Convention on Intercountry Adoption and The Intercountry Adoption Act of 2000
The Hague Adoption Convention, also known as the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, is a multinational treaty. The treaty was adopted at The Hague, in Holland, on May 29, 1993. The Convention created certain rules and procedures which would be observed by all countries that became signatories to it. The goal of the Convention is to protect the children, birth parents, as well as adoptive parents, who are involved in intercountry adoptions.
The United States has been an active and important participant in the negotiation of the Convention. The U.S. delegation to the negotiations, which included adoptive parents, law professors, adoption service providers, public welfare representatives and government officials, sought to ensure that, in addition to setting meaningful norms and procedures, the Convention would remain sufficiently flexible so that only minimal changes to current practice would be necessary for U.S. implementation.
On March 31, 1994, the United States signed the Convention and thereafter began efforts to ratify the convention. In 1998 the Convention was sent to the U.S. Senate for advice and consent to ratification. In June of 1998 the draft of the legislation, entitled “Intercountry Adoption Act,” was sent to both houses of Congress. The Convention and implementing legislation was then forwarded to the Congress for further consideration, study, and Congressional action. On September 15, 2003 the proposed rule was published in the Federal Register.
The most important provisions of the Convention can be summarized as follows:
· All signatory countries become parties to the Convention and the Convention will apply to all adoptions between the signatory countries.
· An adoption may take place only if:
1. The country of origin has established that a child is adoptable
2. That an intercountry adoption is in the child’s best interests
3. That after counseling, the necessary consents to the adoption have been given freely
4. The receiving country has determined that the prospective adoptive parents are eligible and suited to adopt
5. That the child they wish to adopt will be authorized to enter and reside in that country
· Every signatory country to the Convention must establish a national government-level central authority to carry out certain non-delegable functions, which include cooperating with other central authorities, overseeing the implementation of the Convention in its country, and providing information on the laws of its country.
· Other functions under the Convention are delegable to public authorities and, in many cases, to adoption agencies and other international adoption service providers.
· Services provided by persons/entities other than adoption agencies are permitted if both the country of origin and the receiving country permit them.
· Persons wishing to adopt a child resident in another member country must apply to a designated authority in their own country.
· The Convention provides that, with limited exceptions, there can be no contact between the prospective adoptive parents and any person who cares for the child until certain requirements are met.
· All adoption service providers must be accredited/approved to provide services under the Convention.
There are major benefits and advantages to the Convention which will be enjoyed by all the signatory countries. Implementation of the Convention would mean that:
- For the first time there will be a formal international and intergovernmental approval of the process of intercountry adoption
- The Convention encourages intercountry adoption, as regulated by the Convention, as a means of offering the advantage of a permanent family to a child for whom a suitable family cannot be found in the child’s country of origin.
- A minimum set of uniform standards governing international adoptions are established. Every country that is a party to the Convention is able to promulgate or maintain further conditions and restrictions beyond those specified in the Convention.
- The Convention establishes a central authority in each country to ensure that one authoritative source of information and point of contact exists in that country. In the U.S., authorities of other party countries and members of the American public will be able to look to the U.S. central authority for reliable information and assistance.
- The Convention establishes reasonable certainty that adoptions decreed pursuant to the Convention will be recognized and given effect in all other party countries.
The Convention facilitates the adoption by U.S. adoptive parents of children from another party country by providing a justification for establishing a new category fo children for immigration purposes. The Immigration and Nationality Act (INA) will be amended by the implementing legislation to establish a category of children adopted pursuant to the Convention, thereby streamlining U.S. visa procedures.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
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