Specific Regulation Changes
“The Baby Business” includes nine suggestions, drawn from extensive reporting, that could help the U.S. more effectively prevent the buying and selling of children for international adoption.Below is a list of some key Department of State Hague regulations that could be reviewed for increased effectiveness in implementing those suggestions. The full text of the relevant Hague regulations is located at the Electronic Code of Federal Regulations website.
§96.34 (a) The agency or person does not compensate any individual who provides intercountry adoption services with an incentive fee or contingent fee for each child located or placed for adoption.
§96.34 (b) The agency or person compensates its directors, officers, employees, and supervised providers who provide intercountry adoption services only for services actually rendered and only on a fee-for-service, hourly wage, or salary basis rather than a contingent fee basis.
The Intercountry Adoption Act of 2000 (IAA), the U.S. legislation that ratified the Hague Convention on Intercountry Adoption and enjoined the Department of State to publish implementing regulations, included a ban on commissions or fees “per child.” Regulation 96.34 (a) makes that explicit. However, §96.34 (b) allows fees for services—which can easily be a distinction without a difference. Safeguards are needed to ensure that the “service” being paid for is a service related to the care of children—and not the service of “finding” a child who could be placed for adoption, which is essentially a commission or finder’s fee.
§96.34(d) The fees, wages, or salaries paid … are not unreasonably high in relation to the services actually rendered, taking into account the country in which the adoption services are provided and norms for compensation within the intercountry adoption community in that country. (Emphasis added).
One of the primary purposes of The Hague Convention on Intercountry Adoption is to prevent “improper financial or other gain” from international adoptions—in other words, to remove the financial incentive for unscrupulous middlemen to “find” children for adoption by paying someone to buy, defraud, coerce, or steal them from their birthfamilies.
However, this regulation allows U.S. agencies to compensate their in-country workers and partners with amounts that are disproportionately high compared to the country’s economy—amounts that may offer them precisely that financial incentive to keep healthy infants coming in, by any means necessary.
A number of experts have suggested that §96.34(d) should say that wages for international adoption work should be proportionally related to comparable in-country work, deleting everything in the above sentence after “and norms for compensation.” Points of comparison might include the salaries made by expatriates working in the same country for, say, international humanitarian organizations. To enforce this, it might be useful for the State Department to draw on its own economists in order to post a spreadsheet showing the usual fees, salaries, and wages for similar work, and to require adoption agencies to submit their wages and salaries to accreditation reviewers, benchmarked against this spreadsheet.
§96.36 Prohibition on child buying
§96.36 (a) … prohibits its employees and agents from giving money or other consideration, directly or indirectly, to a child’s parent(s), other individual(s), or an entity as payment for the child or as an inducement to release the child. If permitted or required by the child’s country of origin, an agency or person may remit reasonable payments for activities related to the adoption proceedings, prebirth and birth medical costs, the care of the child, the care of the birth mother while pregnant and immediately following birth of the child, or the provision of child welfare and child protection services generally. Permitted or required contributions shall not be remitted as payment for the child or as an inducement to release the child. (Emphasis added.)
Ethica in particular has singled this out as ripe for abuse. It argues that, given the very small amounts that families in underdeveloped countries live on, even these relatively slight humanitarian payments could induce families to give up some children to feed the rest. Although §96.46(a) permits only “reasonable payments,” such assistance may be a “soft money” channel for improper activities. Regulations might instead insist that such monies can only be released for general child welfare efforts for needy families, whether or not such families relinquish a child for adoption. Ethica’s reasoning is that no family should face the devil’s choice of either giving a baby away in order to feed the other children … or keeping a baby and risking starvation. It suggests that adoption agencies that are not in the humanitarian business generally–i.e., are also offering small payments if needy mothers wish to keep their children–should not be permitted to underwrite pregnancy and birth lest they be, in effect, paying for surrogacy without legal protections.
§96.40 Fee policies & procedures
§96.36(b) Before providing any adoption service to prospective adoptive parent(s), the agency or person itemizes and discloses in writing the following information for each separate category of fees and estimated expenses that the prospective adoptive parent(s) will be charged…. NOTE: These categories are: Home study; Adoption expenses in the United States; Foreign country program expenses; Care of the Child; Translation and document expenses; Contributions; Post-placement and post-adoption reports; Third party fees; Travel and accommodation expenses.
While this regulation is a start at “preventing improper financial gain,” critics say that it doesn’t shine enough light on how, exactly, consumers’ funds will be used.
First, those categories are all but impossible for consumers to compare from one agency to the next. Each agency has its own way of naming and categorizing its fees. And agencies don’t necessarily know what expense to list in which category.
Second, consumers (and Hague reviewers) have a difficult time understanding exactly what those lump sums do or to whom they are disbursed. Consider, in particular, two categories: “foreign country program expenses,” which the regulations define as “The expected total fees and estimated expenses for all adoption services that will be provided in the child’s [birth] country”; and “contributions,” defined as “any fixed contribution amount or percentage that the prospective adoptive parent(s) will be expected or required to make to child protection or child welfare service programs in the child’s [birth] country or in the United States.” The numbers offered in those categories range dramatically. While the agency may give a general explanation of what those monies are intended to do, there is no mandatory tracking mechanism to ensure that the monies were distributed ethically.
The key question remains outstanding: Exactly where does all that money go?
Changes might include tightening §96.40(b) to require agencies:
- to list fees in a standardized format on their own websites or in their handouts and explanations
- to itemize “foreign country program expenses” in more detail, breaking down where the money goes (or producing a budget for the overseas office)
- to produce bank transfer statements or receipts for financial activities above a certain minimum in the foreign country, as advised in the Hague’s Guide to Good Practice. In particular, see §5.3 Setting reasonable fees and charges, page 63. “Greater transparency may be achieved if official receipts could be issued in respect of all activities requiring payments abroad…”
- to submit these lists of expected standardized and itemized charges, as well as of receipts for the actual fees, to both prospective parents and Hague reviewers.
Finally, because cash opens the door for officials involved in adoptions to demand improper payments that can’t be tracked, experts overwhelmingly agree that the State Department should add an item–whether under this regulation or elsewhere–banning adoption agencies from requiring prospective parents to carry large amounts of cash into the foreign country to pay directly for adoption services. Experts say that whenever possible, the regulations should require agencies to use wire transfer and other procedures so that prospective adoptive parents don’t have to make any cash transactions for adoption services while in a foreign country.
§96.46 Using providers in Convention countries
CURRENT TEXT INCLUDES:
§96.46 (c) The agency or person, when acting as the primary provider and, in accordance with §96.14, using foreign providers that are not under its supervision, verifies, through review of the relevant documentation and other appropriate steps, that:
(1) Any necessary consent to termination of parental rights or to adoption obtained by the foreign provider was obtained in accordance with applicable foreign law and Article 4 of the Convention;
(2) Any background study and report on a child in a case involving immigration to the United States (an incoming case) performed by the foreign provider was performed in accordance with applicable foreign law and Article 16 of the Convention.
Until the Hague Convention was enacted, an American agency could evade responsibility for fraud in an adoption by saying it simply did not know that children it had brought to the U.S. had not been legally relinquished by their parents—that, for example, Sister Maria Theresa of the Tender Loving Care Children’s Home in India had told illiterate families that they were signing papers allowing her to feed, house, and educate their children, when in fact, those papers gave permission to place their children for international adoption.
The IAA of 2000 included language intended to hold American adoption agencies responsible for their overseas partners’ actions. In its first two subsections, this regulation, §96.46, upholds that mandatory responsibility by requiring that American adoption agencies investigate to be sure that their overseas partners comply with the Hague convention and American law, do not “engage in practices inconsistent with the Convention’s principles,” have no pattern of license suspensions, are accredited in their own countries, and so on.
However, §96.46(c) offers an important exception, called “unsupervised providers.” In these cases, some foreign sources, like hospitals or facilitators, can submit documentation saying they’ve done the right thing when getting parents’ consent to relinquish a child or when reporting on a child’s background. But fraudulent relinquishment documents have been a large part of the problem in improper adoptions.
In translating the IAA into regulations, the Department of State’s inclusion of §96.46(c) is “actually contrary to what was talked about in writing the legislation,” said Kathleen Strottman of the Congressional Coalition on Adoption Institute, who, as a senior aide to Sen. Mary Landrieu, was one of the IAA’s authors. Some critics say the State Department should delete §96.46 (c) and give agencies a legal duty to scrutinize all their overseas sources’ activities.
Law professor David Smolin goes further, and argues that the State Department should give the agencies a “duty of care” as they select their foreign partners, requiring them to perform “due diligence” and to investigate any partner’s methods and practices before entering any contract or arrangement with them.
Further, Smolin argues, Hague regulations should obligate agencies–the only consistent player with front-row seats to practices in international adoption–to report anything suspicious in relinquishments, abandonment patterns, orphanage populations, and so on. If an agency fires a facilitator after finding evidence of unsavory practices, that agency should have an obligation to report the problem lest other agencies hire the same rogue. Smolin argues that finding one corrupt facilitator in a country is like finding one carpenter ant in a house: it’s important to call the exterminator right away to examine the source, lest an invasion be underway.
NOTE: This page from the Schuster Institute for Investigative Journalism website offers documentation of and background about serious irregularities in international adoption. For the systemic analysis of corruption in international adoption, please read “The Lie We Love,” Foreign Policy magazine, Nov./Dec. 2008, and visit our webpages dedicated to international adoption. For ideas about fairer policy solutions, please read “The Baby Business,” Democracy Journal, Summer 2010.
© 2008-2014 Schuster Institute for Investigative Journalism, Brandeis University, Waltham, MA, 02454. All rights reserved.
Last page update: February 23, 2011