The Guatemalan and United States enactment of the Hague Convention on Intercountry Adoptions created a spiral of events leading to
1. Prohibiting American Citizens from adopting children from Guatemala, Cambodia, and Vietnam;
2. Prosecuting, without sufficient evidence or full application of the law, Attorneys, Judges, and Adoption Leaders on the charges of human trafficking for assisting in past adoptions; and
3. Ignoring the potentially unethical actions of CICIG (“International Commission Against Impunity in Guatemala” in which their 18 million in funding comes from the international community) attorney’s .
Below will describe a story of attorneys assisting the international adoption of an unwanted child, a woman’s claims that the child was hers (among similar claims of different children) after 3 years of being missing, and the prosecution of the attorneys and actors involved in the adoption of the original child. Question arise of whether the attorneys actually committed a form of human trafficking, the child adopted was actually the mothers, and the motives of the mother considering she does not actually want the child returned.
*Please note the following is based on the opinions and factual angle of Susana Luarca and her followers. As under the Universal Declaration of Human Rights and the relevant Conventions, Freedom of Speech is essential to protect the human rights of all. It is always important that voices not be muffled, even when there is an overwhelming opinion against them in the international community.
I had the pleasure of meeting with notary and Guatemalan attorney, Susana Luarca. As you walk into her Guatemala City home, it seems normal for a successful Guatemalan attorney. The only exception is the Police Officer stationed outside of her home. Walking in, she greeted me with a big smile and the traditional Guatemalan hello. As I scanned her face, I was surprised to see how well she was able to maintain herself and sustain her natural beauty during this very difficult time. Having the beauty and poise of a Latina Meryl Streep, my brain could not process why such a woman would be subjected to house arrest or the accusations of human trafficking. As we sat down, Luarca immediately began discussing the case of corruption, injustice, and a foreign agenda that would likely consume any listener’s mind for months after. The following is a summary of the interview with Luarca, focusing on the viewpoints of Luarca and a brief analysis of the laws and policies involved in this case of alleged human trafficking in Guatemalan adoptions.
1. Summary of Karen Abigail Case:
- January 2, 2007: Felicitia Antonia brought her two-year old alleged daughter, Karen Abigail(“Karen”), to an adoption facilitator, Marvin Josue Bran Galindo (“Bran”), in Mixco, Guatemala. Bran worked as a facilitator between Felicitia, Celebrate Children, Inc. in Florida, USA, the organization’s director, Susan Hedberg, to assist in a Missouri, USA family’s adoption of Karen. The Guatemalan Family Court initiated the adoption proceeding.
- July 9, 2007: After many delays, the required DNA test was performed on Karen. The DNA test showed Felicitia Antonia was not the mother of Karen, but instead a relative. The DNA test and scientists believe due to the DNA combinations that Felicitia was actually a close relative of Karen, potential an aunt of the birth mother. (Please note this from Luarca’s statement and not verified). Without a positive DNA, the US embassy could not grant the adoption visa. Karen’s birth mother never came forward to provide the proper DNA to continue the adoption proceedings. Under the Guatemalan adoption procedure, if a DNA test between the birth mother and child prove negative, one of three actions will be taken:
- The government returns the child to the person representing themselves as the birth parent;
- A legal representative presents the child to the Court of Minors for the child to be sent to a Guatemalan orphanage; or
- Once given to a Guatemalan orphanage, the orphanage can optionally undertake the complicated process of having the child declared abandoned in order to increase the likelihood of adoption.
- August 2007: The potential adoptive family’s Missouri attorney referred them to Susana Luarca to handle the case legally.
- September 12, 2007: A foster parent was provided to Karen and later presented to the orphanage Asociacion Primavera to being the abandonment procedures.
- September 18, 2007: The abandonment procedures began for Karen.
- October 5, 2007: The orphanage ran ads in the local Esquintla newspapers (Karen’s birthplace), as required by the courts, notifying of Karen’s abandonment and calling the birth mother or relatives to take claim of Karen. The court also ordered the general adoption agency of Guatemala, the Procuraduria General de la Nacion (“PGN”), to investigate whether Karen had a relative that would be able to raise her.
- November 6, 2007: The court held the hearing for the abandonment of Karen. The PGN requested an extension for the hearing date because the Missing Person Division not supply the proper report for PGN to make their recommendation.
- December 5, 2007: The court held the new hearing date a month later. The PGN reported to the court that the investigation showed all the necessary requirements for Karen’s abandonment. The court ordered Karen to be permanently placed in Asociacion Primavera for a permanent adoption placement. The Civil Registry of the Port of Iztapa, Escuintla, where Karen was born, recorded the government/Association Primavera as being the legal custodian of Karen.
- December 13, 2007: The notarial adoption process for Karen began.
- December 31, 2007: Guatemalan ratified the Hague Convention on Intercountry Adoptions and enacted the CNA to reform the intercountry adoption system. In turn, the laws within the country changed dramatically and began a moratorium on intercountry adoptions for cases not yet begun.
- February 10, 2008: As required by the new enactment of the Hague Convention and CNA requirements, the notarial adoption proceeding was recorded with the CNA. This in turn placed Karen’s case as a “grandfathered case”, allowing the proceedings to continue during the Guatemalan moratorium on intercountry adoption proceedings.
- February 29, 2008: The adoption proceeding was filed in the Family Court and a social worker for Karen’s case was appointed.
- April 3, 2008: The US embassy preapproved Karen’s adoption visa.
- May 5, 2008: The Family Court social worker recommended the Missouri family’s adoption of Karen.
- May 8, 2008: The director of Associacion Primavera consented to the Missouri family’s adoption of Karen and such consent was submitted to PGN on May 29, 2008.
- July 29, 2008: Karen was taken to the verification interview with the PGA and CNA. It was verified that she was not among the missing children being sought by mothers.
- September 2, 2008: The PGA released their (July) approval of Karen’s adoption. The present notary (later called the second adoption process notary) notarized the process.
- December 9, 2008: The foster parents of Karen finally were able to receive all the required documents for Karen and travel to Missouri to deliver Karen to her new Missouri parents. Also during this whole process, the Missouri adoptive parents came to visit Karen numerous times and even took her to receive her final medical check-up and passport.
KAREN FINALLY ARRIVED IN THE UNITED STATES TO LIVE WITH HER ADOPTIVE PARENTS IN DECEMBER 2008
- December 2008: Loyda Hernandez Rodriguez identified her missing daughter as being a girl named Dulce Maria Ortiz Garcia to the press. This identification was later revoked.
- March 2009: A judge issued a warrant to find Karen. The CNA publicized all of the grandfather cases in February 2008, in order to prevent any stolen/missing children from being adopted without the birth parent’s knowledge. A woman named Loyda Hernández Rodríguez (“Loyda”) petitioned the court in March 2009 after seeing a picture of Karen, that Karen was her daughter. [Note at the time, this was the third different photographed child that Loyda claimed was her child.]
- March 2009: The judge and police officers raided the Associacion Primavera in search for Karen. The Director of the orphanage called Luarca, informing her of the raid. Luarca arrived quickly and explained to the judge that Karen was already adopted and living in the United States since December 2008. The judge continued to search the orphanage and calling the name “Anyeli Liseth”, a name that no one working in the orphanage recognized. When it was continually understood that they were referring to Karen, Luarca once again stated that she was already adopted and living in the United States.
- Early April 2009: The District Attorney, police officers, and armed police raided the orphanage Associacion Primavera, orphanage branch in Palin, Luarca’s office, and Luarca’s home. The raid was generally polite, but the officers did take documents related to another girl named Karen Abigail (“KA2″). Luarca also claims that evidence was planted and photographed at the raid that did not actually exist within the orphanage, including the picture Loyda was using for the missing child and Loyda’s identification card. Luarca also states that the Police Officers stole documents from her office, as the documents were missing after the raid and were not included in the impounding list.
- During the raid of the Palin orphanage, the DA also attempted to remove the nine children, claiming the orphanage did not have the right to operate in the city. A representative showed the DA the bylaws, permitting the orphanage’s operation. The legal rights prevented the DA from taking the children. However, the DA still reported to the newspapers that the children were removed from the orphanage.
- Mid April, 2009: Luarca and the DA coincidentally met during an adoption proceeding in Esquintla. Upon request of the DA, Luarca received the file of Karen from the court clerk, proving Karen was legally adopted without error. The DA later revealed the question of Anyeli Liseth. The DA and Luarca discussed the law requiring a DNA test and review of all the facts regarding a kidnapping. The DA soon revealed that Loyda’s legal representatives did not want to have Loyda conduct a DNA test.
- Late April, 2009: Upon a bit of investigation, the following was later revealed to Luarca:
- Loyda’s original picture of Anyeli was lost and another picture replaced it. The replacement picture was of a girl much older than Loyda’s original toddler picture of her daughter.
- The parents gave three different testimonies on how their daughter was allegedly kidnapped.
- Loyda has stated that even if her daughter is found, she does not actually want her returned.
- May 28, 2009: The Director of the Association Primavera was sent to jail during the trial (and still is in jail) for the charges of trafficking in persons for illegal adoption, false document, and conspiracy.
- Summer 2009: The District Attorney charged those related to the adoption of Karen, including the adoption proceeding judge, PGA attorneys, attorneys from the original adoption, notary from the second adoption, and the Director of the Association Primavera, with trafficking in persons for illegal adoptions, using false documents, and conspiracy.
- August 2009: The District Attorney charged Bran, the original adoption facilitator, with trafficking of persons for irregular adoption. The Director was also required to pay Loyda $100,000 Quetzales in civil damages.
- September 2009: At the expense of the defense and must persistence, a DNA test was finally preformed on Loyda, showing that the girl from the original July 2007 DNA Test was her daughter Anyeli. However, there are major concerns that the July 2007 DNA Test was preformed on KA2 instead of Karen (in Missouri). The picture of the girl DNA tested in July 2007 does not look anything like past or present pictures of the child now living in Missouri.
- December 16, 2009: The District Attorney charged Luarca with forged documents, illegal association, and human trafficking. Loyda is asking for over $1,000,000 Quetzales in civil damages from Luarca.
- April 6, 2011: The notary of the second adoption was sentenced to 16-21 years for the above crimes. The notary was also required to pay Loyda $100,000 Quetzales in civil damages.
- Karen is likely not the daughter of Loyda. The results of Karen’s DNA test taken in Missouri have never been sent from her Missouri parents or attorneys. There are major doubts that she is Loyda’s daughter Anyeli because her caregivers have testified under oath that the girl in the original July 2007 DNA Tests, looks nothing like the Karen that was adopted in now living in Missouri. This information was submitted to the courts, but ignored. Further, the Guatemalan Courts have not requested the Missouri family to send the DNA test of Karen to resolve the issue.
- Loyda and other birth mothers do not want their “missing” children returned. In an October 2009 interview with U.S. Ambassador McFarland, Norma Cruz (international adoption defender and advocator) announced that Loyda and other mothers claiming their children were stolen and adopted from U.S. citizens did not actually want their children returned if found. See: http://www.cablegatesearch.net/cable.php?id=09GUATEMALA1178&version=1314326040.
- The charges of human trafficking cannot be upheld against Luarca or others because their acts lack the essential elements of sexual exploitation or forced labor. The charges in which the Guatemalan courts are holding against the defendants is not applicable to an adoption case, making the whole case fall along the lines of a witchhunt. See discussion below.
- Loyda is likely pushing this case to receive the civil damages. As noted above, Loyda does not want the return of her child if found. The question then becomes why is she continuing this suit, especially with contrary evidence? The likely answer is because of the civil damages she can potentially receive if the actors are prosecuted. In the Guatemalan legal system, civil damages can be obtained in the same criminal trial. At this time she has already received 200,000 Quetzales and asking for over a million more from Luarca. This amount could be an incentive for a person to push a case.
2. The Arrest:
a. December 16, 2009 Arrest Warrant for Luarca
On December 16, 2009, el Minestario Public (District Attorney) received a warrant for the arrest of Susana Luarca (without probable cause) under the charges of trafficking in persons, use of forged documents and illegal association. When the Judge granting the warrant gave her testimony at the preliminary hearing, she admitted that she had no knowledge of the Guatemalan Law of Minors and could not truly understand the arguments presented for the warrant. Therefore the arrest warrant was likely not properly warranted.
b. Courts charge Luarca with Conspiracy, Trafficking in Persons, and Falsification of Legal Documents; posted bail and under house arrest
On April 1, 2010, Luarca was charged with conspiracy, trafficking in persons, and falsification of legal documents. The court decided to allow Luarca to post bail, transferring her to house arrest while awaiting trial.
c. Third Court of Appeals Reverses Bail Decision and Sends Luarca to Jail
On May 5, 2011, the court reversed the decision to allow Luarca out on bail and ordered her to be sent to jail. This reversal was based on unproven accusations that Luarca had an excessive amount of money in United States Banks.
At 4:45pm on May 5th, a police force, equivalent to a United States SWAT team, raided the house of Luarca under the arrest warrant. Her children immediately notified Luarca of the raid while Luarca was out running errands. While Luarca understood her return would lead to an arrest and in front of her four children, she still came straight home to abide by the arrest warrant. [As a side note, avoiding the arrest in Guatemala would have been as easy as Luarca driving 3 hours to the El Salvadoran border or 5 minutes to the Guatemalan airport and catching flight out of the country.]
d. Luarca in Jail While Facing Threats To Her Life From Marasalvatrucha (MS-13) Gang Members
Luarca remained in jail for two months where she describes a horrible situation. Even though Guatemalan law requires that those waiting to be prosecuted and already prosecuted for heinous crimes to be in separate jails, Luarca was sent to a jail combining both those awaiting trial and already prosecuted. Luarca was surrounded by numerous Marasalvatrucha (MS-13) gang members who were already sentenced for violent crimes and murders. During the story of her imprisonment, the story of Judith Miller, featured in the U.S. movie “Nothing but the Truth”, ran through my head. Throughout her jail time she was threatened, extorted for money, and assaulted by gang members. All of this suffering for a crime that she has not been legally prosecuted for. She states that even worse than the time within the jail, was the suffering her children had to face. She reports that her younger adoptive children would cry continuously, her older children would receive ridicule and psychological anguish from the controversy, and additionally they would all worry of losing their mother for 20 or more years.
e. Luarca July 18, 2011 released to house arrest during investigation and trial
On July 18, 2011, the judge reversed the decision to have Luarca in jail and released Luarca to house arrest due to the continuous threats on Luarca’s life. Luarca is now released on house arrest awaiting trial. House arrest requires Luarca to have a Police Officer stationed at her house at all times, never to leave the house, to feed the officer breakfast, lunch, dinner, and two snacks, and to sign her name in a court book every 15 days with the escort of the officer.
f. Third Court of Appeals Reversed House Arrest Reversal, Order Can Be Enforced Any Day
The Third Court of Appeals recently reversed the house arrest decision and Luarca can be sent to jail at any time while awaiting her trial.
3. Luarca’s Court Cases
a. Present 2012 Court Cases against Luarca and CICIG Involvement
Luarca is still fighting the case and continually proving factual evidence that she did not commit the crime. She has only been in one hearing in front of the Minor Court. The case has remained in the preliminary hearing stage since December 2009. Both the DA, CICIG, and Fundacion Sobrevivientes (representatives of Loyda) have continually pushed delays, extensions, and are said to be frustrated at the lack of evidence for their case. The government still has not met its burden of proof to even get past the preliminary hearing stage, however the effects of their delays have severely affected many, including Luarca, for the past 2 years.
b. Claims of CICIG harassment of witnesses
There are even reports of the CICIG prosecutors verbally harassing witnesses whose stories support Luarca’s position. One witness in particular was a mother who wanted to give her child up for adoption. She went to Luarca to help because she would not be able to safely go back to her village and have the child as an unwed mother. The witness told CICIG authorities that Luarca took her into her home, fed her, and took care of her throughout the whole pregnancy. When the child came, they properly entered the relinquishment proceedings and then began the adoption proceedings which led to her child to being adopted. The witness reported going to Luarca was a great decision.
As stated above, the CICIG prosecutors continued to get frustrated with the witness, harshly telling her that they can be very mean if she didn’t tell them the truth. While there are other harassment stories during depositions, the part that is even more worrisome in the situation is that it is often the culture for lower class and indigenous women in Guatemala to be very timid, making any form of harassment a great way to stop a woman from testifying.
4. Legal and Political Insight into the Controversy
a. United Nations Definition of Human/Child Trafficking
Under the UNODC law defining trafficking in persons, Luarca would not be liable for trafficking in person as in her original charge since her actions were not knowingly aimed or ended in the exploitation of the adopted children.
The United Nations defines human trafficking as the “recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud or deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude, or the removal of organs.” (United Nations. Office on Drugs and Crime (UNODC), Trafficking in Persons: Global Patterns. April 2006, p. 50). The United Nations’ Children’s Fund (UNICEF) defines a child as being trafficked as when “a child has been moved within a country, or across borders, whether by force or not, with the purpose of exploiting the child.”
i. Human Trafficking in the Context of Intercountry Adoptions
Specifically, the United Nations has enacted specific treaties concerning the legal and illegal practices involved in intercountry adoptions. To properly analyze the most relevant Hague Convention on the Protection of Children and Co-Operation in Respect of Intercountry Adoption (1993), one must also synthasize the clauses from the Convention on the Rights of the Child (1989), Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (2000), and The United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986).
Considering the best interest of the child, the United Nations acknowledges that there are situations where it is best for the child to be adopted through intercountry adoption. However, opening a child up to intercountry adoption can lead to corrupt practices within the adoption process that could make the process an actual sale of the child. States who have signed the above Conventions should take action to prevent the abduction, sale of, and trafficking of children. Convention on the Rights of the Child, 1989, Art. 35. The Sale of a Child means any act or transaction whereby a child is transfered by any person or group to another for remuneration or any other consideration. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, 2000, Art. 2(a). In turn, if anyone improperly induces the consent of the family of origin for an adoption, receives payment higher than the reasonable professional fees from an adoption, receives an improper financial gain from any activity related to the intercountry adoption, or receive remuneration which is unreasonable high for the intercountry adoption as a Director, administrator, or employee working with the adoption process. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, 2000, Art. 3; Hague Convention on the Protection of Children and Co=Operation in Respect of Intercountry Adoptions, 1993, Art. 32. It can then be argued that if any of the above improper actions occur within an intercountry adoption, it would fall under the Sale of a Child. The actors preforming the improper action could potentially then be charged with human trafficking for the Sale of a child, with the exploitation component being the improper financial gain received from their improper activities. This argument can be countered however that the exploitation component is not actually present since there is no actual exploitation of the child if they are safely living with their adoptive parents.
b. U.S. Government Foreign Policy on Adoptions and Law
i. Intercountry Adoption is Not Trafficking in Persons under U.S. Law
While there has been many critics and journalist to characterize the cases of intercountry adoptions as being a form of child trafficking, the United States law, along with other international laws, eliminate this possibility by requiring a component of exploitation to be a factor for the crime. The following provides a brief United States legal definition of human and child trafficking.
Under the Trafficking Victims Protection Act of 2000 (TVPA), the United States government defines “trafficking in person” or “human trafficking” as the “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or … the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. (Victims of Trafficking and Violence Protection Act of 2000 (P.L.106-386)).
Trafficking in persons/human trafficking is designed as an umbrella term for activities involved when one person obtains or holds another person in compelled service. (DoS Trafficking in Persons Report, 2011). The TVPA defines this compelled service under four different categories: (1) Involuntary Servitude, (2) Slavery, (3) Debt Bondage, and (4) Forced Labor. (22 USC 7101, 2000). The major issues revolving this type of compulsion is victims of sex trafficking, forced labor, bonded labor, debt bondage among migrant laborers, involuntary domestic servitude, forced child labor, child soldiers, and child sex trafficking. (DoS Trafficking in Persons Report, 2011).
In the case of child trafficking, the United States, along with others within the international community, considering the trafficking component to either be forcibly or voluntarily trafficked. (CSR Report for Congress, Order Code RL30545, 2007). It is important to note that under the general human trafficking definition and more specific norm of child trafficking definition, both the TVPA and United Nation’s Protocol to Prevent, Suppress and Punish Trafficking in Persons (The Palermo Protocol), the actual reasons for transportation, it is the form of enslavement that makes the activities heinous and a violation of law and not the actual transportation.
Therefore, the United States law does cover forms of child trafficking, enabling prosecution of a person facilitating such activities. The question is then whether intercountry adoptions, if preformed illegally, are a form of child trafficking under the United States law.
While not ratifying the 1993 Hague Convention on Protection of Children and Cooperation in Respect to Intercountry Adoptions until December 2007, the United States did enact Public Law 106-279 to provide for implementation of the Hague Convention in October 2000.
The Convention aims to (1) establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and respecting their fundamental rights, (2) create a system of cooperation between the contracting states to ensure that the safeguards are respected and prevent the abduction, the sale of, or traffic in children, and (3) secure the recognition in Contracting States of adoptions made in accordance with the Convention.
Generally, the Preamble states the reason for the enactment: ”Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.” Hague Convention on the Protection of Children and Co-Operation in Respect of Intercountry Adoptions, 1993, Preamble.
Further, the concept of trafficking is indirectly discussed in Article 32, stating that no one should receive improper financial or other gain from activity related to the intercountry adoptions. However, this is qualified by the requirement that fees and costs can be accepted by professionals for the adoptions if they are reasonable. As well, the directors, administrators and employees of organizations involved in an adoption should not receive remuneration which is unreasonably high in relation to services rendered. From this application, a person would be acting against the Convention if they were either receiving a financial or other benefit for the adoption OR a professional, Director, administrator, or employee receiving an unreasonable fee for the services rendered.
Therefore when analyzing the U.S. law on intercountry adoptions and trafficking, it is clear that intercountry adoptions are NOT a form of human/child trafficking. However, it is a form of child trafficking when the intercountry adoptions become corrupted by the act of child laundering/other illegal means to have the child adopted or used for the more heinous acts of child trafficking (sexual and labor exploitation). Going back to the exploitation requirement, the illegal possession of the child for adoption and receiving of a benefit or in a professional’s cases an unreasonable benefit, would then be the exploitation required for child trafficking.
ii. U.S. Government Ratified the 1993 Hague Convention on Intercountry Adoptions in December 2007
On December 12, 2007, the United States Government ratified the Hague Convention on Intercountry Adoptions. It was noted that prior to the official ratification, the U.S. Government made a public statement in 2006 stating that it already considered Guatemala to be apart of the Hague Convention even though Guatemala had not yet signed and ratified the convention. (See http://www.hcch.net/index_en.php?act=conventions.text&cid=69.)
iii. U.S. Government withdrawal from CNA Pilot Program
In November 2009, the Guatemalan government announced it would be implementing a new pilot adoption program in order to begin the implementation of the Guatemalan 2007 enactment of the Hague Convention on Intercountry Adoptions. The program was designed in coordination with CNA and UNICEF, however, UNICEF withdrew its participation in the program in 2010 due to a number of concerns.
The United States government withdrew from the CNA Pilot Program in October 2010 due to factors of the UNICEF withdrawal, continued vulnerabilities in the adoption process, corruption in the legal system, and a limited number of safeguards. The consequence of this withdrawal is that new intercountry adoption cases will not be reviewed for U.S. families wishing to adopt from Guatemala until the issues within the Guatemalan legal system are resolved. As stated on adoptions.state.gov, this does not prevent grandfathered cases from continuing the adoption process.
iv. U.S. Government Halting Intercountry Adoptions from Vietnam and Cambodia
For the same reasons of not complying with the Hague Convention on Intercountry Adoptions, the U.S. Government halted the intercountry adoptions within Cambodia and most recently in February 1, 2012 in Vietnam.
v. Luarca’s Opinions on U.S. Government Halt in Pilot Program and Intercountry Adoptions
It is within Luarca’s opinion that the U.S. Government’s decision to remove their interest from the CNA Pilot Program was not necessarily due to the inconsistencies in compliance with the Hague Convention, but instead the result of a new policy to encourage adoptions within the United States. She cites the review of U.S. adoption visas approved, the dramatic decline in intercountry adoptions, and the continuing U.S. political actions of halting intercountry adoptions in other countries including Vietnam and Ethiopia. According to Luarca, this new policy has delayed the adoption of children of the pending “grandfather cases” for years, without much reason or conciliation given to the awaiting adoptive parents.
Whatever the reason may be for the halt in the pilot program, one thing that can be stated with more confidence is that Guatemala and the CNA will likely never reach the stringent standards of the Hague Convention. Corruption from the bottom up exists in every aspect of life within Guatemala. It is unlikely that if the most basic aspects in the legal system can’t be fixed, then the large task of reforming the whole adoption system will not be reformed. Therefore, either the United States government will need to be more lenient with its policies concerning adoptions within Guatemala, or Guatemala will be continually considered a non-adoptive zone for potential American adoptive parents.
c. Guatemalan Law and Policy concerning Intercountry Adoptions
i. Original Guatemala Law on Adoptions-Criminal Code, Art. 194
In the original Guatemalan Penal Code, it was made a crime for a person to take part in an irregular adoption. (Codigo Penal, Art. 194, (Decreto 17-73); Revoked in 2009 by Decreto 9-2009 “Ley Contra la Violencia Sexual, Exploitacion, y Trata de Personas”). Irregular adoption was generally considered as the adoption of a child with the purpose or effect of enslaving the child instead of treating the child as a son or daughter. During the life of Article 194, Guatemalan law defined the crime of trafficking in persons as the following:
“A person in any way whom promotes, induces, facilitates, finances, works or participates in the recruitment, transport, or receipt of one or more persons; using threats, the use of force, or any other form of coercion, fraud, deception, abuse of power, kidnapping/abduction, or of a situation of vulnerability or in the position of giving or receiving payments/benefits in order to obtain the consent of a person who has authority over another; for the purpose of sexual exploitation, prostitution, pornography, or any other form of sexual exploitation shall be punished for 6-12 years in prison.”
“The same penalty (of 6-12 years) will be given to a person related to the circumstances in the above paragraph, in which they subject another person to begging, forced work/services, servitude marriage, irregular adoption, slavery,or practices analogous to the above.” (Código Penal, Art. 194, Decreto numero 17-73, Reforma 14-2005).
ii. Signing of the Hague Convention on Intercountry Adoption
Guatemala signed and ratified the Hague Convention on Intercountry Adoption on December 11, 2007, taking effect on December 31, 2007. [Note that the Hague Treaty was originally illegally passed in Guatemala in 2003, and overturned by the Guatemalan Congress. Further, Guatemala legally cannot ratify this Hague Convention as Guatemalan did not participate in the Convention leading to the Treaty.] This enactment changed the whole landscape of the adoption laws within Guatemala, implementing the Consejo Nacional de Adopciones (“CNA”). The consequence of the CNA’s implementation was that Congress reformed the adoption laws to comply with the Hague Convention, the Government enacted a two-year moratorium on intercountry adoptions, and the Government enacted a new organization as a Central Authority for adoptions within Guatemala.
One exception to the new reform in adoption laws was for “grandfathered cases”. This situation existed for adoption cases already in the notarial process prior to the effective date (December 31, 2007), followed by the legal representative of the notarial case registering the cases by February 13, 2008. This case would then fall under the law as a “grandfathered case”. A further requirement for a relinquishment case, where the parent must legally give up their parental rights, the CNA and PGA must have interviewed the birth mother by August 2008.
Upon enactment of the CNA, the Guatemalan Government began a moratorium on intercountry adoptions at the end of December 2007. The moratorium paused any pending intercountry adoptions cases until the end of 2009.
iii. Enactment of Decreto 9-2009 Repealing original Art. 194
On April 4, 2009, the Guatemalan Congress enacted Decreto 9-2009 Art. 69 [Law Against the Sexual Violence, Exploitation, and Trade of Persons], repealing the original Art. 194 from the Guatemalan Penal Code. (Decreto 9-2009, Ley Contra la Violencia Sexual, Explotación y Trata de Personas, Apr. 4, 2009). Further, Decreto 9-2009 replicates the Hague Convention on Intercountry Adoptions as defined above. (See http://www.scribd.com/TeodofoGonzalez/d/30313714-9-2009-Ley-contra-la-violencia-sexual-explotacion-y-trata-de-personas.)
iv. Conclusion on Compilation of Laws and Policy
Under this original Article 194 of the Penal Code and prior to the moratorium on adoptions and Hague Convention enactment in 2009, Luarca could not have been an accomplice to human trafficking, because this requires there to be an element of sexual exploitation or forced labor which was not present.
Further, under the same law categorized as irregular adoption, Luarca cannot legally be charge with irregular adoptions because of the legal principle nullum crimen, nulla poena sine lege, meaning that there is no crime without legal punishment by criminal (penal) law. Considering Decreto 9-2009 Art. 69 repealed Art. 194 from the Penal Code on April 4, 2009, a Guatemalan court cannot rule on the crime of irregular adoption since it was repealed by the Guatemalan Congress. Therefore, notwithstanding the fact that the elements of irregular adoption would not likely be proven, Luarca cannot legally be prosecuted for irregular adoptions by a Guatemalan Court.
5. Consequences for Luarca and Other Actors Charged on Human Trafficking
a. PGN Attorneys, Missouri Parents’ Power of Attorney in First Adoption, Notary of the First Adoption Proceeding:
- The Fourth Criminal Court found the claims were unsubstantiated, the charges were dismissed and the attorneys and notary were released.
- At the appeal of the District Attorney, CICIG, Fundacion Sobrevivientes, and Loyda, the Third Court overturned the Fourth Criminal Court judge’s decision and ordered the actors to stand trial.
- Trial was set for January 30, 2012, however the District Attorney asked for an extension based on the claim that there were still trying to negotiation deals with some of the accused to have them admit to being “effective collaborators”.
- Unlike the above actors, the notary of the second adoption and Director of Associacion Primavera have been sentenced to 16-21 years in jail. The courts denied the defense to ability to require the Missouri couple to conduct a DNA Test on Karen, which would have likely changed the outcome of the decision.
d. Luarca’s Potential Release
If the charges are dropped or Luarca wins the case, she plans to take steps to reform the Guatemalan Legal System by enacting a Defense Attorney Fund for those not able to defend themselves. She notes that while she has the legal knowledge and court experience, defending herself against a crime that she did not commit has been the greatest uphill battle she has ever faced. She noticed many women within the Guatemalan jails imprisoned and charged with crimes they were not legally able to defend or committed. This injustice as well as her continued efforts to fight for the availability for intercountry adoptions will be her future work once a true justice is given.
6. What You Can Do
This halt in intercountry adoptions and injustice occurring within the legal systems of Guatemala can be influenced by you, your friends, and your family. Whether you know of a family who has adopted or are offended by the injustice of the situation, your voice can matter.
1. Contact your Government/Congressional Representative Today Via Phone, E-Mail, or Letter
For U.S. Representatives Information, See:
Your opinion does matter to your representative and can help the lives of orphans and those helping them today! Your Congressional representative can push the following agenda to assist the problem:
- Revise the U.S. and International Policy on Intercountry Adoptions to continue the reopen intercountry adoptions in Ethiopia, Vietnam, and Guatemala
- Utilize government resources within foreign assistance agencies such as the Department of State and the United States Agency for International Development to focus on Rule of Law Program and Anti-Corruption
2. Contact your local news station.
One of the issues with the situation is that the news broadcasters not aired many stories on the issue and the ones aired were very biased. Encourage knowledge within the international community would be another step to helping the situation.
For More Information on How to Report and Detect Actual Cases or Suspected Cases of Human Trafficking in your Area Visit Polaris Project: