adoptions in guatemala - protection or business?
·
The girls and boys come from 21
departments of Guatemala, with
the exception of Baja Verapaz. The
largest number of children is
reported in the department of
Guatemala, with 63.5%. It is
followed by Suchitepéquez with
6%, Escuintla with 5%, Alta
Verapaz with 4%, Sacatepéquez
with 3.9% and Chiquimula with 3%.
The village of origin is not indicated
in most cases and in others the
municipality is also not indicated.
The ethnicity of the girls and boys
could not be established, since the
files do not provide this information.
At any rate, the place where the birth
certificate was obtained does not
prove that the babies were born in that
municipality, since children may be
registered in a municipality different
from its place of birth (article 240 of
the Civil Code). Cases of abduction,
kidnapping and disappearance and
sale of children show that babies are
registered far from their places of
origin; that the women are taken from
their departments to give birth in
Guatemala City and that babies are
often registered twice, and therefore
have two different birth certificates.
Another problem is that number of
babies that are not registered, which
facilitates illegal adoptions.
66
·
The main destination of Guatemalan girls and
boys who are given up for adoption in Guatemala
is the United States of America, with 94% of all
adoption cases. The remaining 6% is distributed
as follows: 0.5% are adoptions, 1% goes to
European families, another 1% to Asian families
and the country of destination is not indicated in
3.5% of the cases. The fact that only 0.5% of the
adoptions are domestic means that the state of
Guatemala is not providing ways and means for
Guatemalan girls and boys to be raised in their
own country. International adoptions can be
considered when the girls and boys cannot be
properly cared for in the country. This is a
violation of the Declaration on the Social and
Legal principles regarding children's protection
and welfare, and particularly adoption and
placement in foster homes and the Convention
on the Rights of the Child, both of which have
been ratified by Guatemala.
· A total of 1,607 "adoption workers participate in
the process for the adoption of the 1,083 of girls
and boys on which notarial notices have been
given. Of these, 392 are obstetricians and
midwifes, 110 are pediatricians, 155 are notaries,
142 are attorneys-in-fact and 808 are persons
who care for the children during the adoption
process. What is questionable here is not the
number of people who take part, but the number
of people who are exclusively involved in
adoption cases, as well as the concentration of
cases in a few people. The excessive
involvement of "adoption workers" is possible
due to the large amounts of money the
prospective adoptive parents pay for expedited
adoption procedures. The money generated by
adoptions has concentrated a large number of
adoption cases in the hands of certain people.
Prospective adoptive parents pay large sums of
money to "adoption workers", or people who are
involved in adoption procedures, including
pediatricians, notaries and caregivers. This is
what makes such adoptions illegal.
·
There are "crèche neighborhoods" and "crèche
sectors". Crèche neighborhoods are those in
which several houses are used to care for girls
and boys while they are given up for adoption.
Crèche sectors are concentrations of
neighborhoods where girls and boys who will be
given up for adoption live. Crèche sectors also
exist outside of condominiums and
neighborhoods and the relationship is
established by the closeness among the
addresses.
·
The relationship among the places where girls
and boys who are in the adoption process is not
only established by the proximity among the
caregivers' homes, but also in certain cases
because these people are blood relatives; they
are often sisters, spouses, or a mother and
daughter. This indicates that there may also be
groups of neighbors or friends who engage in
this business.
·
The concentration of girls and boys who are in
the process of being adopted seen in this study
also holds true in the case of hospitals and
private homes where the babies referred to in
the adoption notices were born. It was
determined that most of them are private
hospitals or clinics, most of them located in
Guatemala City. This situation has to do with
the fact that pregnant women are being taken to
Guatemala City to give birth and hand over their
babies for adoption.
Based on the cases studied, it can be said that in
Guatemala there is a criminal economy directly
linked with international adoptions. The ringleaders
of this criminal economy have devised mechanisms
to ensure the supply of babies and then coordinate
their adoptions by the Office of the Solicitor General
of the Nation to ensure that all those working in the
adoption racket obtain benefits.
These adoption rings include notaries,
attorneys, obstetricians, midwifes,
pediatricians, health centers, private
persons and crèches where the
children are cared for. The children's
mothers, nurses, social workers, hotel
proprietors, translators, adoption
agencies, "spotters", registrars of vital
statistics and even public officials and
court officials and, in the worst cases,
kidnappers of girls and boys, are also
involved.
Some members of adoption rings
receive large payments based on the
number of cases they are involved
with. There are notaries who process
27, 45 and even 66 cases each
month; there are attorneys who have
24, 44 and even 65 cases;
pediatricians who care for 35, 57 and
up to 93 children; obstetricians who
attended the births of 17, 26 and up to
25 girls and boys who will be given up
for adoption. The profits come not
only from the sheer number of cases
but also from the sizable amounts of
money received for each adoption.
According to estimates by several
institutions, an adoption costs
between $13,000 and $40,000. In
accounting terms, a notary or attorney
can earn about $6,000 for processing
an adoption. A normal, non-profit
international adoption can cost $4,000
and a national adoption does not cost
more than 1,000 quetzals, or
approximately $150"57.
57
Latin American Institute for Education and Communication (ILPEC),
2000. Adopción y derechos del niño en Guatemala. UNICEF,
Guatemala.
67
adoptions in guatemala - protection or business?
Adoption networks in Guatemala
engage in the sale of and trafficking in
children. Sales consist of the
permanent transfer of parental
authority and/or physical custody for
compensation or financial
consideration. Trafficking consists of
processing an excessive number of
adoptions without effective controls,
transparency, price regulation or clear
knowledge of the origin of the girls and
boys58. When article 32 of the Hague
Convention is implemented, these
people will no longer receive
disproportionate compensation for
their services. This would be the first
step in dismantling the child trafficking
rings for adoption purposes.
Crèches and caregivers during the
adoption process are also involved in
child trafficking. Most of them are
unlicensed or receive large sums of
money for the service, especially the
crèches that are better organized.
Hospitals, private and national or
semi-private health centers are also
involved, since their leadership and/or
employees persuade the mothers to
give the babies up for adoption, even
before they are born. From there
babies are often transferred to
notaries or crèches to begin the
adoption process.
The "workers" who belong to adoption
rings can argue that the cases they
submit to the Office of the Solicitor
General of the Nation have the birth
mothers' authorization. The mothers'
financial situation should be
monitored, especially if they are poor,
to determine whether they were
coerced, forced or deceived into giving
their children up for adoption, since
this is another instance of child
trafficking, and child trafficking is
similar to the sale of children.
68
3.3 From Child
Trafficking to
Adoptions
This case study determined that in the abduction,
kidnapping and disappearance of children:
·
There are two types of victims: the girls and boys
who are stolen and the mothers whose babies
are stolen.
·
In 26 cases, the kidnappers were 60 persons,
60% of them women and 40% men. The former
are aged between 15 and 56, although women
aged 21-29 predominate; and the latter are aged
between 18 and 58, but most are between 31
and 40. In five cases they are blood relatives.
·
There are two modalities: the abduction of the
child through deception and using violent means.
·
The abduction can take place in one of three
situations: one, when the victim is alone or in the
company of another person and has the baby
with her, at places such as work, home or the
street; two, when the victim is retained by her
captors until she gives birth and then the baby is
taken away; and three, when the victim, in this
case the girl or boy, is on the street, at school, a
fair or a dance. The criminals take advantage of
crowds or inattention on the part of the parents
or teachers to kidnap them. In the
58
United Nations Special Rapporteur, first report to the General Assembly, doc. A/50/456.
“spotters”; rapists or lovers; and
any person who buys a girl or boy.
third case, firearms and the use of force were
identified, as well as casualties caused by
firearms.
·
The perpetrators of child abductions,
kidnappings and disappearances are bands,
couples and people acting individually.
With regard to criminal investigation,
indictment and prosecution, it was
determined that:
·
The purchase and sale of children has the following
characteristics:
·
There are two types of victims: babies, girls and
boys who are purchased and then sold; and their
birth mothers, who sell them for adoption out of
extreme need, deception or coercion. This does
not include women who would be able to support
their babies but sell them for material gain.
·
There are seven types of perpetrators in the sale
and purchase of children: “spotters” or
mediators; rapists or lovers of the women who
become pregnant; mothers, fathers and birth
families who sell the children; notaries who carry
out the sale transactions; midwifes, obstetricians
and pediatricians who convince the mothers to
sell the babies; the owners of crèches or shelters
for pregnant women; and prospective adoptive
parents, who pay significant amounts of money
to adopt a girl or boy.
·
There are three modalities involved: the
voluntary sale of children, the sale of children
using deception and the sale of children using
coercion.
·
The way children are offered for sale: the websites
of international adoption agencies.
·
The way to approach pregnant women or the
mothers of newborns: when they are alone.
·
The three ways in which the perpetrators of the
sale of children operate:
The Section for Protection of
Children and Adolescents of the
National Civil Police is carrying out
investigations of events that have
to do with the purchase and sale of
children and the abduction,
kidnapping and disappearance of
children. The police are doing a
better job in carrying out its
responsibilities, despite its limited
human resources, the lack of
equipment and vehicles for its
investigators. The shortcomings of
police investigations are not only
due to institutional weakness but to
the unwillingness of the Ministry of
Justice to coordinate criminal
investigations with the police.
The actions of the Ministry of
Justice and the Office of the
Solicitor General of the Nation are
quite recent and seem to be a
reaction to the current situation
rather than institutional interest in
performing its functions of putting
an end to the purchase and sale of
children in the country. Generally
speaking, State institutions do not
work in a systematic or coordinated
fashion to solve the cases of
purchase and sale of children. In
the case of the Office of the
Solicitor General of the Nation, an
in-depth investigation of the
adoption files is apparently being
conducted, considering that 19
adoptions are authorized every
day, for a total of 383 each month.
69
adoptions in guatemala - protection or business?
·
There is no interest on the part of
the Ministry of Justice and the
Judiciary to seek legal means to
prosecute and punish the
perpetrators of the crime of child
trafficking that is implicit in
adoptions and in situations that are
not contemplated by the law, such
as the abduction of children.
·
There is a criminal economy that is
directly linked to adoptions, that
involves numerous persons and
businesses, and State institutions
take no action against them.
This situation seems to indicate
that court officials are involved in
the adoption rings.
70
·
Women's vulnerability prevents
them from reporting and pressing
charges. Women's weakness
increases due to the lack of victim
and witness protection measures,
particularly because in the cases
studied, all the women received
death threats because they looked
for their children.
·
There is strong community
intervention in the apprehension of
crime suspects. In some instances
this results in physical aggression
and fatal lynchings.
· As far as investigation is concerned, civil society
organizations continue to gain experience and
help to document cases of child abduction,
kidnapping and disappearance for adoption
purposes. Their work has provided crucial
elements in proving that the girls and boys have
been illegally separated from their mothers, and
have succeeded in having the children returned
to their mothers through trials. The victims have
also been treated with respect and dignity.
There is no question that organizations such as
Casa Alianza and the Survivors' Foundation
have made a decisive contribution to criminal
prosecution and indictment through the
competent authorities.
The cases studied showed the close links that exist
between child abductions, kidnappings and
disappearances, the purchase and sale of children
and international adoptions.
At least four cases of child abduction, kidnapping
and disappearance have confirmed, two of which
are being tried and two that were settled in court.
There is the case of the baby who was abducted
from a tortilla factory to be given up for adoption.
When this baby was rescued by the National Civil
Police, it already had a birth certificate with another
name and a notarial custody certificate in favor of a
crèche. Another baby was kidnapped from her
home and recognized by her mother in a
newspaper. When habeas corpus was applied for,
the crèche presented another baby and not the one
that appeared in the newspaper. The baby was
recognized by the mother but a DNA test failed to
prove her identity. Although the Ministry of Justice
closed the case, laboratory results may have been
altered, so the case is still pending. The Survivors'
Foundation is a co-plaintiff in both cases. Cases
have also been reported to the First Children's
Court of the Metropolitan District Court, that were
prosecuted by the Legal Assistance Program of
Casa Alianza Guatemala, in which the judge who
handed down the sentences resolved that the girls
should be returned to their mothers.
In addition to the above-mentioned cases, several
institutions confirm the close links between the
abduction of children and international adoptions.
In 2006, the Office of the Human Rights
Ombudsman reported child trafficking among the
violations of girls' and boys' rights. In July 2007, the
regional representative of the Office for the Defense
of Indigenous Women in Alta Verapaz stated that
the abduction of children is not new, because a
large number of cases have been reported to the
institution for the past two years. She added that
she has the names of lawyers, court officials,
midwifes, places where women are taken to give
birth clandestinely and police officers who are
involved in the abduction of children for adoption
purposes. The head of the Presidential
Commission for Coordination of Executive Policy on
Human Rights (COPREDEH) stated that there are
"bands with international contacts that export
children who are abducted by violent means and
then given up for adoption. In Guatemala a crime is
committed when a child is abducted, which is
subsequently legalized through adoption
procedures.”59
Regarding the purchase and sale of children and
international adoptions, this business is fueled by
the demand for children for adoption and the sizable
financial gains these adoptions bring to adoption
networks. This study presents several cases
related to the purchase and sale of children.
Several cases of "spotters" that operate at prisons,
looking for pregnant women or women with babies
to offer them money in exchange for the children,
have been reported to the Office of the Human
Rights Ombudsman. The Office for the Defense of
Indigenous Women (DEMI) has received reports on
raped women who became pregnant and were
pressured into giving up their babies for adoption.
The National Civil Police reports that a baby was
handed over to a notary and then the parents asked
for more money for it. The child has two birth
certificates. International adoption agencies offer
Guatemalan children for adoption on the internet.
The sale of children is a crime under
the Protocol to the Convention on the
Rights of the Child on the Sale of
Children, Child Prostitution and Child
Pornography, which refers to the sale
of children for adoption purposes.
Under this protocol, which has been
ratified by Guatemala, those who
participate in the criminal economy
linked to adoptions can be penalized.
This includes adoption networks and
even the mothers who consent to the
adoption when the child is sold.
Adoption is an institution created to
give a family to girls and boys who
have none or when they are in a
situation that places their human rights
at risk. Its purpose is to protect and
guarantee the child's integral
development and respect of his or her
human rights. If the girl or boy who is
given up for adoption was the victim of
a abduction, kidnapping or
disappearance and/or purchase and
sale, this principle is violated, because
the overriding concern in adoption is
the child's best interest. In this case
the benefits of the transaction
predominate, in addition to the
children's and their mothers'
vulnerability.
Generally speaking, the law requires
that the State protect these children's
rights. The adoption system controls
should therefore be reviewed and
strictly implemented. On the other
hand, the population and civil society
organizations should demand that
these girls' and boys' rights be
defended and guaranteed.
59
Prensa Libre (01/07/2007) Robo and adoptions de niños, preocupación internacional. (The abduction and
adoption of children, an international concern), Guatemala.
71
adoptions in guatemala - protection or business?
Based on the above, it can be said
that child trafficking affects Guatemala
and includes the abduction,
kidnapping and disappearance of
children and their purchase and sale,
which are often linked to adoptions. A
characteristic of these cases is that
the trafficker resorts to threats or to
the use of force or other forms of
coercion, abduction, kidnapping,
fraud, deception, abuse of power or a
situation of vulnerability, or to making
and receiving payments or benefits to
obtain the consent of a person who
has custody of another (the girl or
boy). (Protocol on the Prevention,
Repression and Punishment of
Trafficking in Persons, especially
Women and Children or Palermo
Protocol).
Child trafficking is a multimillion-dollar
business for adoption rings in the
country, due to the vulnerability of the
economic and reproductive and sexual
rights of women, families' situation of
poverty and extreme poverty, the
demand for Guatemalan children to be
given up for adoption abroad, the
complicity of the State and its
institutions and the indifference of
Guatemalan society to something that
violates the human rights of thousands
of girls and boys each year.
Thus, the human rights of girls and
boys and those of women are violated
and there is also a crime problem and
a national security problem that
shelters organized crime and is
promoting corruption and weakening
the incipient rule of law in Guatemala.
72
3.4 From trafficking in
children for adoption to
the murder of women
Three cases of abduction, kidnapping and
disappearance and purchase and sale of children in
which several women were killed or wounded were
identified in the study.
One of the cases refers to a mother whose baby
was stolen after she struggled to protect him and
received two gunshot wounds. Two cases refer to
women, the so-called "spotters", who were involved
in the business of "finding pregnant women" and
women with babies to buy for adoption purposes. In
both cases the women died after they quarreled
with their associates in the child purchase and sale
business60.
A more in-depth analysis might reveal more details
about women's deaths linked to the criminal economy
connected with adoptions.
60
National Civil Police (22/10/2007; 14/01/2007; and 06/07/2007).
Chapter 4
Suggestions
Suggestions
Suggestions
where these events take place.
The population should be
educated to prevent, identify and
expose these abuses through
objective and c o n s c i e n t i o u s
reporting. The people involved in
child trafficking for adoption
purposes should be drastically
punished for violating children's
rights and dignity.
In coordination with civil society organizations,
especially those that work to ensure respect of the
rights of girls and boys, the Government of Guatemala
should consider the following:
·
The Guatemalan State should ensure that
adoptions are carried out legally by
implementing the Law for Integral Protection of
Children and Adolescents and the Convention
on the Rights of the Child, which tacitly repeal
the articles on adoption contained in the Law
Regulating Notarial Processing of Matters
Falling under Voluntary Jurisdiction, under the
supremacy of legislation principle.
·
A legal and operational framework should be
established for implementation of the
Convention on Protection of Children and
Cooperation in the Matter of International
Adoption.
·
Guatemalan society should be advised and
informed of the operations of child trafficking
rings, which engage in the abduction, kidnapping
and disappearance and the purchase and sale of
children for adoption purposes, as well as on
basic steps to protect their girls and boys from
such actions.
·
The abuses committed by these child trafficking
rings should be disclosed. Public opinion
should be informed on the profiles of the
criminals, their modus operandi and the places
·
Child abduction, kidnapping and
disappearance and child purchase
and sale surveillance and
prevention operations should be
planned and undertaken in
coordination with the National Civil
Police and on the basis of human
rights, at the places where the
crimes are committed.
· Reports on abduction, kidnapping
and disappearance of b a b i e s ,
girls, boys and
a d o l e s c e n t s must be
investigated by the National Civil
Police immediately, not 72 hours
later, following an organized
search plan. In these cases, the
Ministry of Justice and the
Judiciary Branch should stand
ready to issue search warrants
immediately and take other steps
to find the child without delay.
73
adoptions in guatemala - protection or business?
·
The registration of girls and boys
should be promoted to give them
an identity from the moment of
birth.
Birth families should be
encouraged to identify the child's
blood group, take its finger and
footprints and record its physical
characteristics from the time of
birth. In due time, the actions of
the National Register of Persons
(RENAP) should be supported. It
will organize and manage
Guatemalan citizens' identification
from their birth to their death.
·
·
74
The international community
should be asked to speak out
against child trafficking for adoption
purposes in Guatemala, for the
purpose of raising awareness in
other countries on the need to fight
this scourge against children.
Adoptions in other countries,
especially the United States of
America, should be prohibited until
the Government of Guatemala is
capable of adequately
implementing the Convention on
the Protection of Children and
Cooperation in the Matter of
International Adoptions, the
Convention on the Rights of the
Child and the Integral Law on
Protection of Children and
Adolescents. The purpose of this
prohibition would be to put an end
to the evil business of child
trafficking for adoption purposes.
·
The performance of State institutions responsible
for making decisions regarding adoptions should
be evaluated, especially in view of their
disproportionate increase in recent years. The
Office of the Solicitor General of the Nation
should be audited by civil society to determine
how adoption procedures have been conducted.
Notarial records are public documents everybody
can have access to.
·
The Government of Guatemala should take the
necessary steps to identify public officials
involved in child trafficking for adoption
purposes, dismiss them and criminally indict and
prosecute them.
·
Based on the Criminal Code, the Ministry of
Justice and the Judiciary should consider the
possibility of amending the characterization of
crimes for which people accused of child
abduction have been indicted until now. They
should also consider the possibility of imposing
other penalties for the purpose of discouraging
the purchase, sale and trafficking of children.
The professional licenses of notaries and doctors
might be suspended; health centers and crèches
could be closed down; material assets used for
the production of false documents utilized in
adoption procedures could be confiscated; and
the suspects could be indicated for kidnapping or
abduction.
· The Social Welfare Secretariat should be
technically and financially strengthened to enable
it to support and give therapy to girls and boys
who have been the victims of trafficking, in order
to help them overcome the trauma and
contribute to their stable emotional and
psychological development.
and these two activities should be
characterized as crimes, in order to
have information in that regard.
· The necessary mechanisms should be
established to ensure legal and transparent
adoption procedures, for the purpose of giving
children who are destitute and abandoned an
opportunity to grow in a family environment. The
Social Welfare Secretariat should give priority to
national adoptions and only allow international
ones as a secondary measure.
·
·
The Section for Protection of Children and
Adolescents of the National Civil Police should
be strengthened so that it can carry out a
criminal investigation of events linked to child
trafficking and give assistance and protection to
key witnesses. The necessary steps should be
taken for the Ministry of Justice to coordinate its
actions with the police, so that investigations can
be successful and used in criminal trials.
·
A sociological police study should
be conducted on the issue of
women's murders to determine the
relationship between violent deaths
of women and instances of child
abduction, kidnapping and
disappearance and sale and their
links to adoptions. This study
should go hand in hand with
political actions that might be
effective judicially.
·
The Office for Assistance to
Victims of the National Civil Police
and the Ministry of Justice should
create a special unit to assist child
abduction, kidnapping and
disappearance victims.
Therapeutic support should be
given to the mothers and to the
girls or boys when they are
rescued.
·
Actions aimed at determining the
final destination of girls and boys
given up for adoption during the
internal armed conflict should be
undertaken. The necessary
technical, financial, informative and
scientific means that might
contribute to this end should be
implemented.
Officers of the Judiciary and the Public Ministry,
as well as National Civil Police investigators,
should be trained in the procedures and
methods used in child trafficking for adoption
purposes for the he prevention of child
abductions and the sale of children through
criminal investigations and procedures following
a judicial approach.
· With regard to statistics, a log of all the complaints
received should be kept at the National Civil Police,
regardless of whether they are investigated or not,
in order to have accurate statistics on the
phenomena of child abductions, kidnappings and
disappearances and the sale and purchase of
children. The statistics of the Ministry of Justice
and the Judiciary should be disaggregated by age
75
adoptions in guatemala - protection or business?
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