ADOPTIONS
in
guatemala
Protection or business?
This study entitled Adoptions in Guatemala:
Protection or business? was prepared with
contributions and assistance from several persons,
institutions and organizations, which shared their
time, opinions, vision or contributions with us. We
extend our sincere thanks to all of them.
Adoptions In Guatemala - protection or business?
Casa Alianza Foundation
Myrna Mack Foundation
Survivors Foundation
Social Movement for the Rights of Children and Adolescents
Human Rights Office of the Archbishop of Guatemala (ODHAG)
Social Welfare Secretariat (SBS)
Produced in Guatemala
Design by Tritón imagen & comunicaciones
Printed by Tipografía Nacional
First edition: November 2007
2
Table of Contents
Introduction
5
Chapter 1
9
Legal Framework
Chapter 2
17
Adoptions in Guatemala
1. International adoptions
1.1
Characteristics of boys and girls in the process of being adopted
24
29
1.2
Geographic design contemplated for boys and girls in the process of being
adopted
33
1.3
Adoption network in Guatemala
35
2. Trafficking in girls and boys
45
2.1
Theft and disappearances of girls and boys
46
2.1.1
Victims
46
2.1.2
Who is guilty of children’s theft, kidnapping, disappearance
49
2.1.3
Modus operandi
50
2.1.4. Areas where the crime is committed
2.1.5
52
Response by public authorities, civil society organizations and communities
53
2.2
Purchase and sale of children
56
2.2.1
Victims
56
Who is responsible for the purchase of children
58
2.2.3
Modus operandi
58
2.2.4
Places where the crime is committed
60
2.2.5
Response by public authorities, civil society organizations and communities
61
Chapter 3
63
Conclusions
3.1
Adoption
63
3.2
From adoption to adoption networks
64
3.3
From trafficking in children to adoptions
68
3.4
From trafficking in children to adoptions to the murder of women
72
Chapter 4
73
Suggestions
Bibliography
76
4
Introduction
Introduction
Adoption as such contributes to the
welfare of girls and boys who lack the
protection and support of a family. In
this regard, adoption must continue
and be strengthened, because it is
something that helps give an orphan,
an unwanted, indigent or abandoned
girl or boy a home.
All boys, girls and adolescents are entitled to be
raised and educated by their families and,
exceptionally, by foster families. Whenever that is
the case, the State is under the obligation to
guarantee that adoptions are in the child’s best
interest, and to this end it must base its actions
on national laws and international instruments
ratified by the Guatemalan State in the area of
children’s protection.
However, the Guatemalan State has
been unable to ensure the legality of
adoption procedures, thus turning this
noble institution into a profitable
business. In this business, the
children who are given up for adoption
are not those who need it most, but
those conceived for that purpose.
Babies, both boys and girls, are
traded. Infants are demanded for
adoption by foreign families, in whose
consumer-minded societies their
future sons and daughters have a
price and can be bought. In
Guatemala there are networks of
“child traffickers” who offer and
negotiate babies, and not only those
given up voluntarily for adoption, but
also as a consequence of coercion
and deceit, theft and kidnapping.
These two extremes have resulted in
a market where Guatemalan girls and
boys are bought and sold as if they
were simple merchandise.
doptions in Guatemala - protection or business?
The legal and legitimate adoption
procedure includes the provisions of
the Law for Integral Protection of
Children and Adolescents (LPINA)
and those of the Convention on the
Rights of the Child. In both
instruments, children’s best interests
prevail. To this date, the Guatemalan
State does not comply with the
provisions of the national and
international legal framework, because
adoptions are processed according to
the Law on Notarial Proceedings
Governing Voluntary Jurisdiction
Matters, in the implementation of
which economic interest and not the
child’s best interests have prevailed,
and because this law should have
been tacitly repealed from the time the
LPINA Law entered into effect.
That is the reason for this
investigation, which reviews the issue
of adoptions in Guatemala, based on
files and statistics taken directly from
public institutions to ensure objectivity
in the analysis and statement of the
facts. The investigation gives an
overview of the adoption procedure
and how it does not confer protection
and assurances to girls and boys
given up for adoption, but rather
violates their human rights and their
right to a safe adoption under State
surveillance. The outcome reveals the
illegality of adoption procedures,
irregularities in adoptions, the
existence of a criminal economy
surrounding adoptions, the operations
of n child-trafficking networks and a
baby market. These situations point
to the assumption that adoptions in
the country are linked to organized
crime and that they are often carried
6
out with the consent of Guatemalan Government
and justice officials.
In order to prevent and eradicate baby trafficking for
adoption purposes, the Guatemalan State must
fulfill its obligation to attack the root causes of the
problem and guarantee the legality of adoptions.
Currently there are State institutions that are making
efforts to regularize and legalize adoptions,
particularly international ones, such as the First
Lady’s Social Welfare Secretariat (SOSEP), the
Social Welfare Secretariat (SBS) and the National
Civil Police (PNC), which are working in
coordination with the Multisectoral Working Group
on Adoptions to document current adoption
practices to learn about the operational system and
to develop strategies that promote good institutional
practices.
On its part, the Multisectoral Working Group on
Adoptions, which includes the social movement, the
religious sector, international cooperation and State
agencies responsible for the protection of children’s
rights have been instrumental in the participative
drafting of Bill 3217, based on the principles of the
Convention on the rights of the Child, the
Convention on the Protection of Children and
Cooperation on the issue of International Adoption
and the Law on Integral Protection of Children and
Adolescents. The social movement, in turn, works
for the rights of children and adolescents and is
made up of fifty civil-society organizations.
These efforts are complemented by the work done
by civil-society organizations such as Casa Alianza
and Survivors’ Foundation, which carry out
important research and legal follow-up work of
cases that have led to fact finding, in some cases
obtaining judicial decisions in favor of women
victims and the recovery of babies that had been
stolen and bought to be given up for adoption.
Performance of State institutions’ functions should
also concentrate on criminal prosecution and
punishment of the crime of trafficking in children as
such. This requires decisive work on the part of the
Judiciary, the Ministry of Justice and the police. The
office of the Prosecutor General of the Nation must
also perform its function of protecting children and
ensuring the legality and legitimacy of adoption
procedures.
The
results of this study indicate
that Guatemala should conscientiously
determine what it means to respond to
the demand for international adoptions.
Based on the results, the Guatemalan
Government and society should find
mechanisms to attack the causes of
illegalities in adoptions and make it
clear that Guatemalan girls and boys
are not merchandise.
Chapter 1
Legal Framework
Legal Framework
Legal Framework
International
treaties,
conventions and conventions, as well
as domestic law, constitute a regulatory
framework on the protection of girls and
boys that are given up for adoption. In
1986, the General Assembly of the
United Nations adopted the “Declaration
on the Social and Legal Principles
Regarding the Protection and Welfare of
Children, with Special Reference to
Adoption and Placement in Foster
Homes, at the national and international
levels”.
This Declaration establishes that
when the child’s parents are
unable to take care of him or when
their care is unsuitable, the
possibility of placing the boy or girl
under the care of other family
members or an adoptive family or
an appropriate institution must be
considered (article 4) and that
international adoption will only be
considered when these conditions
cannot be offered in the country of
origin as an alternative way of
providing him or her with a family
(article 17). It also establishes
four fundamental questions: one,
that the child’s birth parents and
the future adoptive parents must
have enough time and suitable
counseling to reach a decision on
the child’s future (article 15); two:
the prohibition of kidnapping or
any other act for the illicit
placement of girls and boys
(article 19); three: the importance
of preventing adoptions from
producing financial benefits for
those who take part in processing
them; and four, protection of
children’s legal and social
interests (article 21). This
international declaration provides
the Guatemalan State with
principles that allow it to interpret
the law. Jurisprudence is also
created as more and more
countries implement it.
adoptions in guatemala - protection or business?
Three years later, in 1989, the United
Nations General Assembly adopted
the Convention on the Rights of the
Child, which establishes that “in all the
measures concerning children taken
by public or private social welfare
institutions, courts, administrative
authorities or legislative bodies, a
main consideration will be the child’s
best interest” (article 3). Since this
Convention recognizes that girls and
boys must grow up in a family,
surrounded by an atmosphere of
happiness, love and understanding to
achieve their full and harmonious
development, it has considered
special rights to protection and
assistance for children deprived of this
family environment.
When considering alternative homes
for these girls and boys, the
Convention establishes that special
attention must be given to continuity in
a child’s education and to aspects
having to do with his or her ethnic,
religious, cultural and linguistic
origins. On adoption, it establishes:
one, that adoptions shall be
authorized by competent authorities
and respecting legal and legitimate
procedures; two: that they will be
carried out with the full knowledge and
consent of the birth mothers and
fathers, family members or guardians
or the girls and boys, for which they
will have received the necessary
counseling; three: international
adoptions will be considered
advisable when girls and boys cannot
be properly cared for in their country
of origin; four, that girls and boys
given up for adoption in foreign
countries must enjoy the same rights
as other nationals of that country; five,
that international adoptions must not
produce undue financial benefits for
those who participate in them;
and six, that care must be taken to ensure that the
placement of the boy or girl in another country is
carried out through competent authorities or bodies,
under bilateral or multilateral agreements (articles
20 and 21). The Convention also stipulates that
States parties should “take all the national, bilateral
and multilateral steps that are necessary to prevent
the kidnapping, sale or trafficking of children for any
purpose or in any form (article 35).
The
Convention on the Rights of the
Child was adopted by the Congress of the
Republic of Guatemala on May 10, 1990, through
Legislative Decree 27-90. It was likewise adopted
by other countries such as El Salvador,
Nicaragua, Costa Rica, Panama, Argentina,
Bolivia, Brazil, Canada, Colombia, Chile,
Ecuador, Peru, the Dominican Republic and
Paraguay. By 2007, the Convention had been
ratified by 192 and only the United States of
America and Somalia had failed to do so.1
Said Convention paves the way for regulation of
international adoptions, which coincides with the
increase in the demand for Latin American girls and
boys to be adopted by families in developed
countries. This situation degenerates into a disaster.
State control of adoption proceedings becomes
inoperative and even becomes an accomplice of the
child trafficking networks. Because of these
irregularities in international adoptions, the issue of
protection for girls and boys who are given up for
adoption was taken up again in The Hague in 1993.
1 www.unicef.org (30/10/2007)
10
Thus, the Convention on Protection of Children
and Cooperation in the Question of International
Adoption was approved on May 29 of that year.
Its objectives are: one, to ensure that
international adoptions are carried out
considering the best interests of girls and boys
and respect of their fundamental rights; two, to
establish a cooperation system among the
States parties to ensure this protection and
prevent the kidnapping, sale or trafficking of girls
and boys; and three, to ensure that adoptions
are carried out based on the rules established in
the Convention (article 1).
This Convention establishes that international
adoptions may only take place when (article 4):
(a) it has been established that the girl or boy is
adoptable; (b) it has been determined that the
girl or boy cannot be placed in his or her country
of origin and, then, international adoption is in
the child’s best interests; (c) it has been
ascertained that the persons, institutions and
authorities whose consent is required for the
adoption have been appropriately counseled and
informed on the consequences of their consent
to the girl’s or boy’s adoption; this consent must
be given freely, legally and in writing and not be
obtained in exchange for payment or
compensation. In the mother’s case, consent is
only accepted when given after the birth of the
baby and not before; and (d) Steps have been
taken to ensure that girls and boys with a certain
degree of maturity have been counseled and
informed on the consequences of the adoption,
their opinions and wishes have been taken into
account, they have given their consent freely,
legally and in writing. Also in this case, consent
cannot be given as a result of payment or
compensation.
On the other hand, the Convention considers that
adoptions may only carried out when the competent
authorities of the receiving State have made sure
that the future adoptive parents are suitable and
capable of adopting; that they have received
adequate counseling; and that the girl or boy has
proper authorization to enter and permanently
reside in the receiving country (article 5).
It also
establishes that all
contracting States to the Convention
must designate a Central Authority
responsible for fulfilling the
obligations established by the
Convention for protection of the
rights of children with regard to
international adoption (article 6).
The Central Authority is
administrative, not jurisdictional,
and is located in the State; one of its
functions, however, is to cooperate
and coordinate with the judicial and
other competent authorities to
ensure the welfare and safety of an
adoptable boy or girl.
However, protection of children with
regard to international adoptions will
depend on the number of countries
that ratify this Convention and of the
quality of its implementation. Several
comments are in order in this respect.
The first one is that in Guatemala, the
Convention will enter into effect as of
December 31, 2007, but the United
States, for instance, which is the
country that has the highest demand
for Guatemalan girls and boys for
adoption, continues to delay its
ratification. To this we must add the
pressures exerted on Guatemala to
conclude the international adoption
procedures begun in 2007 before the
entry into effect of the Convention.
The second one is that the
Guatemalan State must delegate the
Central Authority of the Convention to
an instuitution whose transparency
and incorruptibility cannot be placed in
doubt, and the country faces an
enormous challenge in that regard, if
one considers that most of its
institutions are linked to irregular
adoption procedures.
11
adoptions in guatemala - protection or business?
The third one is that the Convention,
like the 1986 Declaration and the
Convention on the Rights of the Child
of 1989, prohibit undue financial
benefits for those who participate in
adoptions, but it also imposes more
specific restrictions when it stipulates
that “only costs and expenses may be
charged, including reasonable fees for
the persons who have played a role in
the adoption. Directors, managers
and employees of interested
organizations who take part in the
adoption procedure may not receive
disproportionate compensation for the
services rendered” (article 32). This
means that proper implementation of
the Convention could leave a
considerable number of persons who
are involved in the child trafficking
networks without benefits. In other
words, these networks are on the alert
and will do everything in their power to
weaken implementation of the
Convention and will likely do so from
the very Central Authority designated
by the Government of Guatemala.
Thus it is essential for a Council or
Group made up of civil society
organizations to audit the actions of
the Central Authority with the
assistance of international
cooperation.
Regarding this last point, it must be
remembered that the State of
Guatemala also ratified the Protocol for
the Prevention, Repression and
Punishment of Trafficking in Persons,
Especially Women and Children, that
complements the United Nations
Convention on Transnational
Organized Crime.in August 2003
(Decree Number 36-2003).
The Guatemalan State is therefore under
the obligation to “prevent and combat
trafficking in persons, giving special
attention to women and children; protect
and assist the victims of trafficking ,
respecting their human rights, and
promote cooperation among States to
achieve these purposes” (article 2). It
specifically establishes that “collecting,
transporting, transfering, harboring or
receiving a child for exploitation purposes
is considered to constitute trafficking in
persons, although none of the means
enumerated is used”; these include
sexual abuse, forced labor, servitude,
slavery and organ harvesting (article 3).
Thus, one of those means that are not
listed is the trafficking of children for
adoption
purposes,
since
in
Guatemala traffickers resort to threats,
the use of force, coercion, kidnapping,
fraud, deceit, abuse of power, abuse
of a situation of vulnerability and
receiving or making payments or other
benefits to obtain the consent of the
person who has the guardianship of
the boy or girl in their collection,
transportation, transfer, lodging or
receipt.
In
the
national
legal
framework,
adoption
is
contemplated in article 54 of the
Constitution of the Republic of
Guatemala, which stipulates that
12
the protection of orphan or abandoned girls and
boys is a matter of national interest and that an
adopted child becomes the son or daughter of the
adopter. This article recognizes that adoption is a
measure to protect and give a family to girls and
boys who do not have one.
The adoption process itself is governed by the Civil
Code of September 14, 1963, which defines
adoption as “the legal act of social welfare whereby
the adopting parent takes a child that is the
offspring of another person as his own child” (article
228). According to this Code, adoption only affects
the adopter and the adoptee (article 229). The
process can begin with the application for adoption
filed in the Court of First Instance of the place of
residence of the adopter. The child’s birth
certificate and the testimony of two honorable
persons who attest that the financial and moral
status of the adopter qualify him or her as capable
of meeting the obligations an adoption entails
(article 240) should be submitted.
In view of the implementation of the provisions of
this article, most girls and boys are registered in the
Municipality of Guatemala, even if they were born in
other parts of the country. On the other hand, the
process stipulated in the Civil Code lends itself to
other anomalies such as documents lacking
authenticity or failure to counsel the birth mothers
and fathers so they can give informed consent to
the adoption or to preclude the possibility of consent
being given as a result of deceit, coercion or
purchase. The rights and guarantees the State
must ensure for all boys or girls in the adoption
process are also not ensured. Other aspects the
Civil Code addresses are cessation, reversal and
rehabilitation of parental custody. Aspects that
have to do with the rights of the child and his or her
mother and father are not dealt with.
In 1977
, the Congress of the
Republic of Guatemala enacted the Law
Regulating Notarial Processing of Matters
falling under Voluntary Jurisdiction
(Decree number 54-77). Under this law,
adoptions regulated by the Civil Code may
be formalized by a notary public without
prior judicial approval of the proceedings
(article 28). This means that a judicial
decision is not required for adoption, but
only approval by the competent authority,
which is currently the office of the
Prosecutor General of the Nation by means
of a public instrument executed by a
notary public.
This Law has given rise to multiple
violations of the rights and guarantees
of girls and boys given up for
adoption, since there is no control of
adoption procedures by the competent
authorities and the children given up
for adoption in other countries are not
followed up. Thus, this provision has
resulted in a drop in judicial adoptions,
which only represent 2% of the total,
the remaining 98% being processed
extrajudicially or by notaries public.
The notarial procedure requires the
birth certificate of the child, the
testimony of two honorable persons
who attest to the financial and moral
status of the adopters, a report by a
social worker of the Family Court and
protection of the assets of the
adoptee, if any. Then the office of the
Prosecutor General of the Nation
formalizes the adoption through a
public instrument and if there are any
objections they should be expressed
in a timely manner.
The Law on Integral Protection of
Children and Adolescents (LPINA), in
force since July 18, 2003, stipulates
that “the parents’ or the family’s lack of
material resources does not constitute
sufficient grounds for the loss or
suspension of parental custody”.
Therefore, children must remain with
their birth families. The State is under
the obligation to create institutions,
facilities and services to promote
family unity and provide appropriate
assistance to parents, relatives or
custodians for the upbringing and care
of girls and boys (article 21). This Law
recognizes the institution of adoption,
provided that priority is given to the
best interests of girls and boys and
adolescents and that it is carried out in
accordance with the treaties,
conventions, conventions and other
instruments on this matter adopted
and ratified by Guatemala (article 22).
13
adoptions in guatemala - protection or business?
With regard to international adoptions,
it stipulates that it is the duty of the
State to ensure that girls, boys and
adolescents enjoy the same rights and
standards that exist in their country of
origin and and are subject to the
procedures established by the law on
adoptions (article 24).
It
should be stressed that
when the LPINA law entered into
effect, everything stipulated on
adoptions in the Civil Code and
the Law Regulating Notarial
Proceedings in Matters falling
under Voluntary Jurisdiction
should have been repealed
since, under the principle of
supremacy, the most recent
provision repeals the earlier one,
whether expressly or tacitly. In
this case, LPINA went into effect
in 2003, whereas the Civil Code
dates back to 1963 and the Law
to 1977. One can conclude,
therefore, that adoptions
processed through notarial
proceedings are illegal. In
addition to this, the special
protection provisions
contemplated by LPINA to
preserve the family unit are
being violated by the State of
Guatemala and, therefore,
notarial proceedings authorized
by the office of the Prosecutor
General of the Nation does not
result in loss of parental custody
of a girl or boy given up for
adoption.
As pointed out
by the Inter American
Commission on Human Rights
of the Organization of
American States2,, due to the
lack of State control and the
high prices paid by adopters,
instead of providing an
appropriate solution for orphan
or abandoned children,
adoption gives rise to child
trafficking networks. Given the
weakness and shortcomings of
Guatemalan administration of
justice (…), these networks
currently operate with total
impunity in the country and,
according to reports received
(…), the State participates
and/or condones their
activities”. In this regard, the
study carried out by the Latin
American Institute for
Education and Communication
(ILPEC) at the request of
UNICEF concludes that the
adoption process follows the
“laws of supply anhd demand”,
the outcome being child
3
trafficking.
2 (2003) Chapter VI, The Situation of Children.
3 Latin American Institute for Education and Communication, ILPEC (2000). Adoption and
children’s rights in Guatemala. UNICEF. Guatemala.
14
Principles of supremacy
Principle of hierarchy.
Article 46 of the Constitution of the Republic of
Guatemala, which deals with the preeminence of international law, stipulates that
“in the area of human rights, treaties and conventions adopted and ratified by
Guatemala have precedence over domestic law”. The State of Guatemala is
violating the Convention on the Rights of the Child since it does not safeguard the
best interest of children given up for adoption through the Law Regulating Notarial
Processing of Matters falling under Voluntary Jurisdiction. Although it could be
argued that the Constitutional Court concluded that the Constitution has
precedence over the international legal framework, the latter has precedence over
any other law of the country. In this regard, the Constitution establishes that social
interest prevails over private interest and that laws and government or other
decisions that curtail, restrict or distort the rights guaranteed by the Constitution
(article 44) are void ipso jure. Thus, the Law Regulating Notarial Processing of
Matters falling under Voluntary Jurisdiction is not applicable to adoptions because
the child is being treated as the object of a transaction and not as a human being
with rights inherent to human beings, whose protection is constitutionally assured.
The principle of superiority. This principle states that the latest law that goes into
effect expressly or tacitly repeals preceding ones. Thus, the provisions of the Civil
Code of 1963 and the Law Regulating Notarial Processing of Matters falling under
Voluntary Jurisdiction of 1977 are tacitly repealed by the provisions of the
Constitution of the Republic of Guatemala of 1985, the 1989 Convention on the
Rights of the Child and the Law on Integral Protection of Children and Adolescents
of 2003, especially with regard to the best interests of the child.
Constitution of the Republic of Guatemala,
1985
Convention on the Rights of the Child,
1989
Principle of superiority
Law on Integral Protection of Children
And Adolescents, 2003
Law Regulating Notarial Processing of
Matters falling under Voluntary Jurisdiction,
1977
Civil Code, 1963
Principle of specialization. This principle means that if there is a special law on
the subject, it should prevail. In this sense there is the Convention on the Rights of
the Child and the Law on Integral Protection of Children and Adolescents, both
specializing in the protection of children’s human rights. The Law Regulating
Notarial Processing of Matters falling under Voluntary Jurisdiction does the
opposite.
15
Chapter 2
adoptions in guatemala – protection or business
Adoptions
in Guatemala
in Guatemala
The
previous chapter established that
there is an international and national legal
framework on adoptions. However, although
Guatemala has the Law on Integral Protection of
Children and Adolescents and has ratified all
the international agreements on the subject in
the international framework and more recently
adopted the Convention on Protection and
Cooperation in the Area of International
Adoptions, there is still illegality in the fact that
any notary may personally process an adoption.
This illegality is possible because the State
does not fulfill its obligation to guarantee legal
adoptoin based on the prevalence of the child’s
best interests.
Added to this is the 2003 decision of
the Constitutional Court of Guatemala
in 2003, which stated that the decree
adopting the Convention on Protection
and Cooperation in the Area of
International Adoptions was
unconstitutional. This made it
possible for notarial adoptions to
continue with very little State
participation and presence4. The
recent ratification of this Convention in
2007 shows the interest the State of
Guatemala has in regulating
adoptions. It is worth mentioning that
the State does have the necessary
legal instruments to repeal the Law
Regulating Notarial Processing of
Matters falling under Voluntary
Jurisdiction and to protect the human
rights of girls and boys given up for
adoption. Guatemala is one of the
few countries in the world, if not the
only one, where an adoption can be
processed by a notary public.
17
adoptions in guatemala - protection or business?
Accession by Guatemala to the Hague
Convention on Protection and Cooperation
in the Matter of International Adoption
In 2002, the Congress of the Republic of Guatemala adopted the Convention on
Protection of Children and International Cooperation in the Matter of International
Adoption (hereinafter called the Hague Convention) through decree 50-2002, which
should have entered into force on March 2003. However, its validity was challenged
by a group of notaries interested in preserving the existing adoption system and
the Constitutional Court stated that the process of accession to the Convention was
unconstitutional.
On February 28, 2007, the President of Guatemala issued Government Resolution
number 64-2007, which withdraws all the reservations made by the Republic of
Guatemala in 1969 to articles 11 and 12 of the Vienna Convention on Treaty Law, which
was confirmed again in 1997.
After this reservation was removed, on May 22, 2007, the Congress of Guatemala ratified the
Hague Convention through Decree 31-2007. The entry into force of this convention was to
take place on December 31, 2007.
On July 13, 2007, the Social Welfare Secretariat of the Presidency was designated as the
Authority of the Hague Convention through Government Resolution No. 260-2007. Its
mandate to enforce this Convention begins on December 31, 2007 and its activities will be
coordinated with the competent agencies, namely the Ministry of Foreign Affairs, the
Solicitor General, the Judiciary, the Ministry of the Interior and the Prosecution.
This situation has made Guatemala
the fourth country in the world in
number of boys and girls supplied for
international adoptions after Russia,
China and South Korea. It ranks
number one with respect to the total
population, i.e. the ratio between the
number of citizens and the number of
boys and girls given up for adoption4.
For example, 37 children were
adopted for every 100,000 inhabitants
in 2006. In that same year, one of
every 100 children born in the country
was given up for adoption.
In 2003, six countries decided to impose a
moratorium on Guatemalan adoptions due to
irregularities in the process. Some of the reasons
that led to this decision were: UNICEF reports,
reports by Casa Alianza and by the Human Rights
Office of the Archbishopric on the trafficking of
Guatemalan children for international adoption; the
late accession of Guatemala to the Hague
Convention in 2002, that is, nine years after it was
adopted in 1993; and the 1993 Court of
Constitutionality decision that accession to that
instrument was unconstituional. Those countries
were Spain, France, the Netherlands, the United
Kingdom, Germany and Canada, all of them parties
to The Hague Convention.
4 Latin American Institute for Education and Communications, ILPEC (2000). Adoption and the
Rights of Children. UNICEF. Guatemala.
18
However, other countries, particularly those that
have not acceded to The Hague Convention,
continue to process adoptions in Guatemala.
Such is the case of the United States, where
more Guatemalan children are adopted than
from any other country in the world after China.
The situation is sensitive, if you bear in mind that
China has 1,300,000,000 inhabitants while
Guatemala has 13,000,000 and that 97% of the
Guatemalan children given up for adoption in
2006 went to U.S. families.
Adoptions increased significantly in the early part of
the eighties, during the internal armed conflict,
when many orphaned, lost or abandoned boys and
girls were given up for adoption. According to the
National Commission for the Search for Missing
Children, close to 5,000 girls and boys
disappeared, were separated from or given in
adoption during this period. By 2003 this
Commission had documented 1,084 cases of
missing children, of which 46%, or 500, were
babies under one year of age who had been
kidnapped and adopted. “Some of the factors that
make it difficult to solve these cases are the
inability to obtain information in military centers,
orphanages, shelters and others, or to see the
information in adoption files” 5.
5
According to information provided by CNBND representatives at the hearing organized by the Inter
American Commission on Human Rights of the Organization of American States during its 118 th
session on October 16, 2003.
6
Human Rights Office of the Archbishopric (ODHA). The REMHI Report: Guatemala, nunca más
(Guatemala never again). Interdiocesan report on Recovery of Historic Memory, Vol. 1: Informe
Interdiocesano Recuperación de la Memoria Histórica. Tomo 1: Impactos de la violencia (Impacts
of Violence). Chapter II: La destrucción de la semilla (Destruction of the Seed). Title: De la
adopción al secuestro” (From adoption to kidnapping). Guatemala.
7
Op. cit.
Most
of the time,
families that took in children or
adopted them in the community
were part of the cohesion and
solidarity mechanisms that gave
family and community support to
orphaned children. But taking
children in was not always a
solidary mechanism because
there is evidence of children who
were kidnapped and then used
as servants by families who were
not affected by violence, or
children who were separated by
force from their families and
“reeducated” in special homes.
There are also cases of children
who were separated from their
families or communities,
kidnapped and fraudulently
adopted by some of the
murderers of their families.6
"Many families of Army officers have
adopted children who were the victims
of violence. It became a fad among
Army ranks to take care of three or
four year-old children who were lost in
the mountains."7 Some children
were “saved” from massacres to be
adopted by Army officers or taken to
their homes as servants. For
example, a survivor of the “Dos Erres”
massacre in Petén who was six at the
time was taken away by one of the
soldiers who participated in the
murder of the village inhabitants and
the members of the child´s family.
One girl who was three monts old
when her family was murdered in Las
dos Erres was taken away and
adopted by one of the soldiers.
Another girl, three years of age when
her family was murdered in San
Gaspar, Chaju, Quiché in 1982, was
taken by soldiers to Guatemala city.
There she was abandoned and an
Evangelical
19
adoptions in guatemala - protection or business?
organization made arrangements to have
her adopted outside Guatemala8.
During that period, according to the
United Nations Special Rapporteur on the
sale of children, child prostitution and the
use of children in pornography, adoption
began as a possibility of finding adequate
solutions for these boys and girls.
However, in time, it became a profitable
commercial operation, when it became
evident that there was an important
“market” for baby adoptions. Baby and
young children trafficking was thus
established as a large scale operation in
Guatemala9.
The
uncontrolled growth
of international adoptions in
recent years is due to other
causes as well: the economic
conditions of the country, where
51 or the population lives in
poverty and 15.5% in extreme
poverty10, but particularly the
condition of women´s economic
rights. The women who are
most at risk belong to the poor
economic classes in rural and
marginalized peri-urban areas.
56% of these women’s families
are affected by poverty and have
little access to health and
education and, therefore,
experience difficulties in
preserving and/or defending
their rights.
Their social and cultural rights are also violated in
this manner. Some of the social rights in question
are the right to a family, education, security and
social welfare and food. Cultural rights include the
right to an individual identity and access to services
in their own language. There are households
headed by single mothers due to the problem of
irresponsible fatherhood; 50 cases are considered
each week, 70% of them to order the payment of
alimony and 30% because the children's fathers
have failed to pay. Paternity (and maternity) are not
exclusively an economic matter: other factors
provide a pleasant family atmosphere and one that
allows daughters and sons to develop fully. It has
been determined that single mothers are
unprotected. Some of the adoption cases we have
studied show that one of the most frequent reasons
used to convince mothers to give their child up for
adoption is a single mother’s financial need: the
need for food and medicine and medical care are
the most frequent ones.
On the other and, women are vulnerable in the
area of education and access to services in their
own language. Even if they know how to read
and write, they are often unable to understand
and convey the meaning of information. They
sign papers without really knowing what they are
getting into. At hospitals and clinics they receive
instructions they are unable to process and they
accept thyem without understanding the
consequences of their actions. There is a case
of a notary public who offered a mother monetary
assistance to treat a sick child. She then made
the mother sign papers, allegedly from the
hospital where the child was being treated.
When the young mother tried to see her sick
child, the notary told her that by signing those
papers she had given up her child for adoption.
8
Inter American Human Rights Commission (CIDH) (06/04/2001). Chapter XII. The Rights of
the Child. The effect of armed conflict on children.
9
10
Op. cit.
United Nations Development Program (UNDP) (2005). National Human Development
Report, Guatemala.
20
Adoptions are also directly linked to women’s sexual
and reproductive rights, and especially those of
young women. Statistics on maternity among
young women are dramatic: of every 1,000 women
between the ages of 15 and 19, 114 give birth every
year; the fertility rate among rural young women is
113 per thousand and 85 per thousand among
young women in urban areas. 44% of women
between the ages of 20 and 24 had a child before
the age of 20, and the highest proportion, 68%, is
among uneducated women. It reaches 54% among
indigenous women and only one-half of the mothers
aged 15-24 had professional medical assistance the
last time they gave birth11. The lack of access to
timely information and sexual education are also
major factors. “The total number of pregnancies
among girl children, adolescents and young women
aged 11-19 was 52,009 in 2005. Of these, 37% are
reported among girls aged 15-17 and 60% among
adolescents aged 18-19. These figures show the
seriousness of not preventing pregnancy and how
early it occurs. Only this year, there were 1,275
pregnancies among girls and adolescent aged 1114”12. This study showed that the women who are
most susceptible to coercion and deceit in giving up
their babies for adoption are under 25, single
mothers, uneducated and without the financial
resources needed to receive prenatal care and
assistance during childbirth, as well as to support
the child after it is born13.
Violence against women is another factor that must
be taken into consideration, since babies born to
women who have been raped are being given up for
adoption. The study identified three rape cases, in
which the mothers were coerced or deceived into
giving up the newborn baby for adooption. In one of
the three cases, the rapist forced the woman to
leave her community, took her to Cobán to work as
a maid in a private house and from that house she
was sent to Guatemala City to give birth and her
baby girl was taken away and given up for
adoption14.
The Survivor Foundation identified five
cases of 10 and 11-year-old girls who
were raped and became pregnant. In
all five cases, the girls’ families
refused to give up the babies for
adoption for religious reasons, since
they believe that doing so is a sin.
This shows, contrary to the common
belief, that babies born out of rape are
not rejected by their families. This
situation supports the belief that
deception and coercion are used to
make these women give up their
children for adoption. A risk factor is
the “1.8% of women aged 15-24 who
stated that their first sexual experience
was rape, which increases to 18%
among 13-year-old girls”15. In a
survey conducted by the Human
Rights Institute of San Carlos
University of Guatemala (IDHUSAC)
in 2006, 8% of the young women
surveyed stated that their first sexual
experience had been rape16.
The vulnerable situation of women
with respect to their economic, social
and cultural and sexual and
reproductive rights is being used by
child trafficking networks that are
involved in adoptions. These have
encouraged the sale of babies by their
own mothers and, in certain cases, by
their fathers.
11
Guttmacher Institute (2006). Early Maternity in Guatemala: an Ongoing Challenge (Maternidad
temprana en Guatemala: un desafío constante). Cited by Campos, X. (2007). Derechos humanos
de la juventud guatemalteca. (Human Rights of Young Guatemalans). IDHUSAC, Guatemala.
12
Ibid.
13
See paragraph 2.2, Purchase and Sale of Children.
14
Case from Alta Verapaz, 2006. Defender of Indigenous Womenn (DEMI).
15
Pan American Health Office (2005). Cited by Campos, X. (2007). Op, cit.
16
Campos, X. (2007). Op. cit.
21
adoptions in guatemala - protection or business?
This has also given rise to the
business of surrogate motherhood, or
wombs for hire, as in a case in Alta
Verapaz, where a man was arrested
and stated that there were several
pregnant women in his house17.
These individuals have also promoted
the kidnapping, theft and
disappearance of girls and boys. That
is the case of the baby kidnapped
from a tortilla store in Guatemala.
When it was recovered by the police, it
already had a birth certificate with
another name and a notarial certificate
giving custody of the child to a crèche
that would give it up for adoption. The
situation of kidnapped babies has
resulted in a double victimization of
women, who are accused by court
officials of having sold their children.
These women’s lives are governed by
economic interests based on violence
against women.
This reduces a child to merchandise, which should
be condemned. “Thus, the argument that in most
cases adopted children end up living in much better
conditions does not justify the trafficking of
newborns and children in any way"19.
In
this regard, the State in general, and
the Office of the Prosecutor General of the
Nation in particular are committing an
illegal act by approving adoptions when
the reason for giving up the child is the
“parents’ lack or absence of material
resources”, since the Law on Integral
Protection of Children and Adolescents
stipulates that “if there is no other reason
that by itself justifies this measure, girls
and boys or adolescents will be kept in
their birth families (article 21).
One more reason for the increase in
adoptions in Guatemala is
international demand, especially on
the part of United States families, who
pay between $13,000 and $40,000 for
a Guatemalan baby. “UNICEF
estimates that there are 50 applicants
for each healthy newborn. For a
growing number of couples,
international adoption has become the
only viable solution. The increasing
desire to adopt a child living in difficult
circumstances with its birth family or in
its birth community has also
contributed to this increase in
demand”18. However, this should not
be a reason to support and accept the
sale of a human being.
17
Resumen Centroamericano de Noticias (Central American News Summary), as recorded by the
National Commission for the Prevention of Lynching (07/2007).
18
Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child
Pornography, Ms. Ofelia Calcetas Santos (E/CN.4/1999/71).
19
22
Ibid.
Ilegality in Adoption Proceedings
The notary public
receives the girl or boy
because the mother,
father or family does
not have the necessary
material resources to
support it [This
constitutes a violation
of article 21 of the
LPINA Law].
During the adoption proceedings, the
girl or boy is placed in a creche or a
private home and not in a State
institution that is equipped to protect
the child. 98% of the places where
children are “deposited” are private
houses without State authorization to
operate. The same situation exists in
some creches.
The fact that the State fails to perform its function
of supervising adoptions indicates that the State
is corrupt and is acting as an accomplice.
Institutions that are competent in adoption
matters (approval and protection of children),
safety and criminal indictment and prosecution
do not fulfill their duty to protect children and
guarantee their right to an adoption tht considers
their best interests above all and in accordance
with nationa and international legal instruments
in this matter.
The Prosecutor General of the Nation
approves the adoption based on the
Law Regulating Notarial Processing of
Matters Falling Under Voluntary
Jurisdiction, without considering the
best interests of the child [This
constitutes a violation of LPINA and the
Convention on the Rights of the Child].
This
fact, together with
the international demand for
children, has given rise to
networks that engage in the
supply of girls and boys for
adoption for commercial
purposes. Adoptions are a
source of funds for countless
people from all walks of life,
different professions and every
part of the country, including
outside the national borders. For
those who take part in this
criminal organization, adoptions
are a source of profits. These
networks buy babies from
fathers, mothers and birth
families, manipulating their
needs and their poverty, and also
engineer the kidnapping and
disappearance of girls and boys
for the purpose of giving them
up for adoption.
If
one looks for cases and
statistics that corroborate the
existence of a market for
Guatemalan girls and boys for
international adoption, the answers
are fourfold: the illegality of
adoption procedures, the demand
for babies among foreign families,
the operations of adoption
networks and child trafficking.
23
adoptions in guatemala - protection or business?
1. International Adoptions
Girls and boys given up for adoption during different periods and
years (1980 – 2007)
Stated in absolute values and non-continuous periods
GRÁFICA 1
6,000
5,577
4,918
5,000
3,833
4,000
4,048
3,289
3,000
2,320
2,000
1,265
1,370
2,322
3,494
2,139
2,271
1,636
731
1,000
Proy
agosto
Enero a
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
los 80
Década de
0
2007
2007
500
Source: based on statistics of the National Commission for the Search for Disappeared Children, 2003; and the Prosecutor General of the Nation, 2007. Guatemala.
Although there were
adoption procedures prior to 1996,
precise records started to be kept
regarding their increase after that
year. The National Commission for
the Search for Disappeared
Children had a total of 500 cases of
girls and boys given up for
adoption illegally during the
internal armed conflict and 584
disappeared children have not
been located. This is not the total
figure on the number of girls and
boys in an irregular situation
during that period, since it is
estimated that there were more
than 5,000 children who
disappeared and were unprotected.
24
According to statistics of the Office of the
Prosecutor General of the Nation, adoptions
increased 6.7 times during the eleven-year period
1996-2006. In other words, from 731 adoptions in
1996 the number rose to 4,918 in 2006, or a
difference in absolute values of 4,187.
From 1996 to 2002 there was a consistent increase,
but in 2003 there was a 35% reduction. This
reduction is due to two factors: one, the
international situation concerning the
implementation of the Hague Convention by the
Guatemalan State and that six countries decided to
refuse to adopt Guatemalan girls and boys because
they felt that adoption procedures were irregular
and connected to child trafficking; and two, that the
Prosecutor General did not approve adoptions from
May to September 2003, because the Court of
Constitutionality had not made a ruling on the
“amparo” appeal based on the unconstitutionality of
the Convention.
Countries where Guatemalan girls and boys have been adopted
Years1997 a 2007
Stated in absolute values for non-consecutive periods
CUADRO 1
COUNTRY
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
TOTAL
2007
SUBTOTAL
TOTAL
1,265
1,370
1,636
2,320
2,322
3,289
2,139
3,833
4,048
4,918
27,140
3,494
30,634
UNITED STATES
831
854
1,060
1,612
1,829
2,843
1,823
3,572
3,864
4,757
23,045
3,238
26,283
FRANCE
163
166
192
238
189
233
199
50
5
0
1,435
0
1,435
0
23
75
105
76
62
51
108
76
81
657
185
842
SPAIN
51
71
75
94
34
27
10
1
4
6
373
5
378
CANADA
67
73
70
67
19
13
0
0
5
0
314
1
315
ITALY
43
32
17
28
15
20
8
14
17
9
203
3
206
5
19
40
53
49
1
1
5
2
2
177
0
177
IRELAND
21
17
15
22
16
15
10
13
10
6
145
11
156
ISRAEL
24
31
5
4
11
6
0
4
20
17
122
17
139
GERMANY
3
13
27
14
24
10
1
9
2
1
104
0
104
UNITED KINGDOM
20
23
19
9
3
6
1
0
3
24
108
23
131
BELGIUM
8
8
8
7
6
5
1
14
8
4
69
0
69
SWITZERLAND
6
8
10
15
13
8
1
4
0
0
65
3
68
ENGLAND
0
4
4
7
8
4
10
12
7
0
56
0
56
LUXEMBOURG
8
3
3
14
12
6
1
0
0
0
47
0
47
GREAT BRITAIN
0
0
0
0
0
15
0
15
7
0
37
0
37
NORWAY
4
6
8
6
2
5
1
1
0
0
33
0
33
AUSTRIA
1
1
1
5
4
2
5
4
4
3
30
0
30
DENMARK
3
5
2
2
4
1
2
1
4
0
24
0
24
AUSTRALIA
2
5
0
9
0
2
0
3
1
1
23
0
23
SWEDEN
3
7
2
2
7
0
0
0
0
0
21
0
21
BAHAMAS
0
1
0
2
0
1
9
0
0
0
13
0
13
MEXICO
1
0
1
2
0
2
0
1
0
2
9
0
9
AFRICA
0
0
1
0
1
0
2
1
0
0
5
2
7
FINLAND
1
0
1
0
0
0
0
0
2
0
4
0
4
COLOMBIA
0
0
0
2
0
0
1
0
0
0
3
0
3
PUERTO RICO
0
0
0
0
0
1
0
1
1
0
3
0
3
EGYPT
0
0
0
1
0
0
0
0
0
0
1
0
1
HONDURAS
0
0
0
0
0
1
0
0
0
0
1
0
1
DOMINICAN REPUBLIC
0
0
0
0
0
0
1
0
0
0
1
2
3
CHILE
0
0
0
0
0
0
1
0
0
0
1
1
2
COSTA RICA
0
0
0
0
0
0
0
0
1
0
1
0
1
ECUADOR
0
0
0
0
0
0
0
0
1
0
1
0
1
HUNGARY
0
0
0
0
0
0
0
0
1
0
1
0
1
GIBRALTAR
0
0
0
0
0
0
0
0
1
0
1
0
1
PERU
0
0
0
0
0
0
0
0
1
0
1
0
1
ARGENTINA
0
0
0
0
0
0
0
0
1
0
1
0
1
ARAB EMIRATES
0
0
0
0
0
0
0
0
0
0
0
2
2
ESTONIA
0
0
0
0
0
0
0
0
0
0
0
1
1
BERMUDAS
0
0
0
0
0
0
0
0
0
1
1
0
1
CHINA
0
0
0
0
0
0
0
0
0
1
1
0
1
CYPRUS
0
0
0
0
0
0
0
0
0
1
1
0
1
PORTUGAL
0
0
0
0
0
0
0
0
0
1
1
0
1
TRINIDAD AND
TOBAGO
0
0
0
0
0
0
0
0
0
1
1
0
1
GUATEMALA
HOLLAND
Source: Based on statistics of the Office of the Prosecutor General of the Nation.
Guatemala, 2007.
By 2004 they had increased 1.8 times, due to the decision by the Court of Constitutionality to declare that
the accession process by Guatemala to the Hague Convention is unconstitutional, thus allowing lawyers
and notaries public to carry out adoption proceedings directly without a judicial decision on the matter.
The authorities of the Office of the Prosecutor General of the Nation changed that year, which might have
had an influence if there had been a willingness to authorize adoptions without a systematic investigation
of each case.
25