US Department of State

CS/OCS/PRI

Adoption Regulations Docket Room

SA-29, 2201 C Street NW

Washington, DC 20520

**Re: State/AR-01/96**

Dear Sirs:

Enclosed are hard copies of my comments on 22 CFR Parts 96 and 98, which
I previously submitted by e-mail.

The documents include

-   my comments on specific sections of the proposed regulations,

-   my curriculum vitae detailing my expertise in the area of medical
    practice in adoption and

-   a supporting editorial document detailing the reasons why
    international adoption practice should be reformed.

> I would also request that the Department publish an interim rule with
> a second period of commentary when the current regulations are
> revised.

Sincerely,

> Jerri Jenista, MD

# 22 CFR Parts 96 and 98

Comments from Jerri Jenista. MD

**Subpart A: General Provisions**

**96.2: Definitions**

The definitions of disruption and dissolution seem to imply that the
parent(s) would have had the child physically living with them in their
household at the time the decision would be made to disrupt or dissolve
the adoption placement. Because agencies will be required to track
disruptions and dissolutions, it seems necessary to clarify the
definition to explicitly state that the child has been in physical
residence with the family in their home.

Occasionally, the parents have taken custody of the child or have
finalized the adoption overseas but then, at the point of the visa
examination or prior to return to the USA, the family decides to disrupt
or dissolve the placement, i.e., return the child to the orphanage.
Usually this happens because an unknown medical condition either
surfaces or is found to be far more severe than the parents had
anticipated. Occasionally, in the case of an older child, it is because
the child has refused to leave the country, not realizing until the very
end of the process the actual implications of the adoption.

If such "disruptions" or "dissolutions" were included in the overall
statistics of adoption failures, it would seem as if there were a far
higher failure rate of adoption placement than is actually the case, as
the family would never had made any attempt to parent the child. Since
adoption failures are fairly infrequent, even a small number of these
types of "disruptions" may unfairly reflect on an agency's success rate
in placement.

Subpart C: Accreditation and Approval Requirements for the Provision of
Adoption Services

96:14 Providing adoption services using supervised providers, exempted
providers, public bodies, or public authorities

The concept of a primary provider is a brilliant one and should be
retained as defined in this section. By forcing a single entity to take
on the responsibility of either providing or supervising all the
required adoption services, adopting parents and the Central Authority
of the sending country can be assured that there will be careful
monitoring of all aspects of the adoption placement and that there will
be a single authoritative source to provide information on any of those
services. This is a major step forward from the currently fragmented and
opaque process by which many children and parents wend their way through
adoption, never understanding who is doing what and which services
should or could have been provided at any step in the process.

Any attempt to lessen the responsibility (and resultant liability) of
the primary provider should be discouraged. A large part of the risk in
international adoption derives from the diffusion of responsibility
across many providers. I would conclude that a well-run agency with
clear expectations of all the providers it is supervising would minimize
its liability and, over time, decrease its insurance premium, similar to
the way insurance companies lower rates for drivers with good records
and/or driving vehicles with built-in safety features.

# Subpart E: Evaluation of Applicants for Accreditation and Approval

**96.24: Procedures for evaluating applicants for accreditation or
approval**

Section c provides for persons with knowledge about an agency's work to
comment on an agency's application for accreditation. However, there
does not seem to be any process for such persons to make comments. For
example, if I, as a physician, have seen a pattern of practice which
seems inappropriate or excellent, I would have no way of knowing whether
the agency has filed for accreditation nor would I know when the
application process would be soliciting comments.

*Choose Your Own Child? A Good Thing? For Whom?*

*Adoption from Ukraine offers parents the unique opportunity to choose
their own child, and it is a wonderful thing to see how parents and
child 'find' each other. We go with you, the parents, to the Adoption
Center in Kiev.* \...\... *You will be shown photographs of children of
the sex and age group you wish, and you will be provided with basic*
*information about each child. Ukrainians are a slavonic people and
their coloring ranges from blue eyes and the fairest blond hair possible
through to large dark eyes and jet black hair. We then travel together
to meet children, and together, you choose the newest member or members
of your family. This is a beautiful way to adopt. Ukraine adoption takes
into account the chemistry which exists between parent and child. This
method also contributes enormously to the process of integration into
the family.*

I like this lovely quotation, taken directly from the website of an
organization who facilitates independent adoption in Ukraine. As a
prospective adoptive parent, I am immediately filled with visions of my
beautiful family and I am encouraged that I will be given information
about my children while accompanied by a trusted representative of my
agency.[^1] Although the wording differs slightly, the tone is the same
in nearly every website I reviewed promising to facilitate independent
adoptions in various countries of the former Soviet Union. However, on
none of these sites was there any mention that there might be medical,
developmental or emotional issues with the child to be adopted.

**"Choose your own child, your heart will tell you"**

I am not opposed to independent adoptions. For certain parents - those
with special medical expertise, who speak the language, who have lived
in the country for many years, who have relatives or other close
personal ties in the country -- the independent process may provide a
wonderful opportunity for an adoption meeting the family's needs.
However, most families do not have those special resources needed to
accomplish an independent adoption. Indeed, even many prospective
parents with those skills need help in other aspects of the adoption.

But why talk about independent adoption to adoption agencies? Because,
right now, many agencies **are** acting as facilitators with adoptions
from Russia, Moldova, Ukraine and other countries. Having spoken with
numerous prospective adoptive parents, however, it is clear to me that
many do not understand that they are accomplishing an independent
adoption, that is, they feel that, since they are working with an
agency, they are receiving all the services that an agency might
normally provide. Although that may be true for some agencies, others
are simply facilitating; they are not providing a full range of adoption
services. Over the last few months, the most common scenario I hear is
that the agency has provided a homestudy review, guidance to complete a
dossier and arrangements for translation, transportation and housing in
the other country. As in the Ukrainian scenario at the beginning of this
article, the choosing of the child is entirely up to the parents.

To send families overseas without a referral, to choose a child on their
own, is to say that our own system of adoption has no value. It says
that there is no value in social work, no value in medical evaluation,
no value in parent preparation. By bypassing all of these "services," we
are doing a disservice to all parties involved in adoption. It is no
wonder then that we read of so many horror stories in adoption. Yes,
those are the exceptions, but how many of them need to happen before we
decide to improve the system we have rather than throw it away
completely?

A tire company was made to recall 5.4 million of tires because 106
people died in accidents that may have been associated with
manufacturing defects. The chance of dying from a tire-related accident
must be exceedingly small and yet, the American public (and government)
have decided that even a two-in-a-million risk is not necessary or
acceptable. Why then, should we knowingly send off prospective parents
to choose children coming from extraordinarily high-risk social and
medical backgrounds without any social work safeguards built in?
Americans adopt more children, both domestically and abroad, than all
other countries in the world. We have a vast experience with the
placement of children. We know "how to do it right." Why then, does that
knowledge not apply overseas?

**The value of parent preparation**

The prospective parents arrive in a strange country, exhausted and
anxious. By now they have spent most of their savings and are using a
significant portion of their vacation or leave. They are pressured by
time and money, never mind the real prospect of having to choose a child
now or come home with no child at all. They are separated from all their
sources of support -- friends, relatives, and professional consultation.
Yes, they might be able to contact help by e-mail, fax or phone but
that's not the same as sitting in your own living room and dissecting
the video a dozen times, discussing the ramifications of prematurity or
maternal alcohol use with your friends or other parents, investigating
the resources the child might require and if they are available in your
community.

We presume that the parents know what questions to ask and how to
evaluate the answers. Most families I talk to have received no
preparation on the social, economic or public health realities of the
country. They have rosy concepts of how children come to be in
orphanages ("Their loving parents simply could not afford another child
and made the agonizing decision to place the child for adoption.") and
have no idea of the short and long-term impact of institutional care on
the health and emotional well-being of children. They have only a vague
concept of the appropriate questions and no knowledge of how to follow
up.

The vast majority of parents are not able to communicate directly with
the orphanage directors, doctors, courts and other ministries involved
in the selection of the child. They are at the mercy of the person doing
the translating who may have unknown (and negative) biases built into
his/her interpretation and presentation of information. Add to all this
a layer of cultural difference. Through no malice on the part of anyone,
it is difficult for the professionals in the other country to understand
what services will be available and how impaired a particular child
might be in our society. An assessment of any child necessarily takes
into account a review of the resources available to the prospective
family. The child who is right for one family might fare very poorly in
another.

I do not mean to denigrate the professionalism of the services provided
in the other country. I believe that, for the most part, the judges and
doctors and orphanage directors have at heart the best interests of the
children for whom they are responsible. However, that does not mean that
they are able to translate that caring into an evaluation or
presentation that is culturally meaningful to prospective parents. A
medical system that functions under an entirely different premise than
ours, different perceptions of what is normal and abnormal, the
inability to communicate the subtleties of a child's condition, and the
lack of long-term follow-up after adoption lead to both over and under
optimistic assessments of children.

**The value of social work**

Under the best circumstances, the parents would arrive to the Ministry
of Education or Adoption Center with a concept of the type of child they
could most appropriately parent. Then, ideally, various children meeting
those criteria would be presented. In actuality, many families report
that they were offered one or two children and told, "These are the only
ones available right now." They are pressured to look at the children
who happen to be available, regardless of the suitability for this
particular family. If the family declines, then they are forced to go to
a different orphanage, a different city or region or, sometimes, even a
different country.

The social worker's role is to collect the information gleaned from both
parties (the child's guardians and the prospective parents) and to
present it to each party in a culturally understandable manner, while
always keeping the best interests of the particular child paramount.
This is what we are doing in the US when we require extensive
assessments of both child and family before making or approving a
placement. No adoption decision is made in the US by parents choosing
and deciding on a child on their own over the period of a few hours. We
don't expect (or allow) people to get married or to buy a house or a car
without a waiting period. Consumer protection laws were enacted to
prevent ill-thought out decisions. Why then, is it appropriate to make
adoption decisions without allowing the family the necessary time to
understand who this child might be?

**The value of medical evaluation**

Every website, every adoption agency brochure always comments that the
prospective parents are allowed to get an independent medical evaluation
of the child before they make a final decision. Of course, they don't
mention that there may be no western trained physician available, that,
even if there is western medical care, there is no guarantee that the
person has any experience in the short- and long-term consequences of
any number of insults including prenatal exposure to alcohol,
malnutrition, prematurity, congenital syphilis or institutional living
-- all very common on medical records from the former Soviet Union. The
family is basically reliant on whoever is available unless they can
afford to bring along a specialist from home (not very likely).

Counseling about adoption medical records typically requires an hour in
my office and almost always raises other questions that should be
answered before making a final decision. If, after seeing over 16,000
medical records from overseas, I am unable to assess a child, how can
parents, who may never have seen a single record before, do it on their
own? And, no, it is not usually feasible to have the parents fax records
to the US for a long-distance evaluation. Invariably, the parents have
collected inadequate data and it is almost impossible to conduct a long
counseling session on an overseas phone call. And, of course, the
physician is entirely dependent on inexperienced parents for a
description of behavior and an assessment for any features of fetal
alcohol syndrome or other abnormalities.

For example, a family recently returned from Russia with videotape of
the two infants they chose. Because the babies "looked so good," they
asked only a few questions. They were reassured that the children were
"healthy" even though there was no growth, developmental or social
history. In the videotape, made by the parents over two hours of
visiting time, both children were significantly developmentally delayed.
After review in the US, second questions were asked; we discovered that
both children were on high doses of valproic acid, a potent anti-seizure
medicine, and had very high-risk social histories. If the parents turn
down these children, they have lost both time and money but have also
incurred incalculable stress. In another recent case, the parents almost
came to divorce over the decision not to go forward with the adoption of
siblings who were discovered (after the two week trip overseas) to be
prenatally exposed to alcohol, premature and possibly autistic.

There is a vast and growing experience in North America with the
evaluation and care of children adopted from orphanages. Why should we
deny parents (and often not even inform of the availability of) these
services, provided in an appropriate manner, during this most important
decision, which will affect the rest of their lives?

**Making the best of a bad situation**

I have had numerous discussions with parents, facilitators, agencies and
others over this process of choosing your own child. Some of their
arguments favoring the process are presented below.

*Families will go elsewhere if we don't offer this service.* There is no
reason to provide poor service just because someone else is doing it.
Agencies who sit down and explain in depth what the issues are will not
lose clients. In the long run, they will maintain their reputation for
integrity and will have fewer "adoption disasters" to deal with.

*The children can't wait for better adoption laws to be enacted*. That
is true. But, there is no incentive to change the laws to something
better if an inadequate, but working, process is in place. Unless
parents and professionals refuse to work under the bad system, no
changes will occur.

*It's better than doing nothing at all.* Again, there is no reason to
provide inadequate service when it can be done better. A poorly done job
requires far more work to fix in the long run. In this case, it **is**
better to insist on "the right way or no way."

*Families are forewarned.* Truly well-informed prospective parents
probably would not go abroad to select their own child without extensive
preparation. The families I talk to often have had no more preparation
than what they have read on parent support group websites, have heard
through list-serves for various countries or have gleaned from the
"success stories" sections of various facilitator's websites. Many
parents have no preparation at all and are shocked when I mention such
facts as the prevalence of drug and alcohol use and domestic violence;
the rates of prematurity, low birth weight, and malnutrition; the
collapse of the public health system.

*If the courts over there allow it, it must be ok. After all, these are
their children.* Just because it is legal does not mean that it is
right. We don't allow families to select and permanently take home a
child from the foster care system in the US based on a one hour
interview in another language and a few hours' observation in an
institutional setting. We understand that there are many issues beyond
"the chemistry between parent and child" which will impact on the
child's life and functioning. It is not reasonable, and perhaps not
possible, for prospective parents to truly assess the impact of maternal
schizophrenia, congenital syphilis, low birth weight, microcephaly or a
myriad of other issues in a few hours or even in a few days.

*We can give the parents a list of things to ask and to look for before
they go*. Yes, we can give the parents checklists of developmental
milestones and growth charts. We can provide an outline of medical
history to be obtained. But, we cannot teach parents to be social
workers or pediatricians or developmental experts in a few hours, a few
days or even a few weeks. How will the parents be able to assess the
data they have collected and recognize its significance? For example, a
grandmother recently called me after talking to her daughter in Moldova
about the child she had chosen to adopt. The baby's head circumference
was 5 cm (or 2 in) below the 5^th^ percentile on the growth chart. The
daughter had asked about this and was told, "The head size is okay
because the baby was premature and she has been sick a lot. Maybe also
the mother is very small." No mention was made of any possibility of
developmental disability.

**Reverse "adoption imperialism"?**

To apply the principles of appropriate adoption practice differently in
foreign countries as compared to our own appears to be a sort of reverse
adoption imperialism. Instead of imposing upon other countries the
principles we believe to be appropriate for the welfare of children, we
have accepted a second rate standard. Such practices imply that we do
not value the children of other countries or that we believe the people
of those countries do not value their children in the same way that we
do. In either case, do we have any right to make such judgments? We
would certainly never allow foreign nationals to come to our country and
"shop" for children and yet we feel the "right" to allow our citizens to
do the same elsewhere.

**Do it right, or don't do it at all**

It is possible to practice international adoption in an appropriate and
sensitive manner protecting the rights and interests of all parties
involved. The Korean system, although not perfect, allows for the prompt
referral and placement of children with complete and accurate medical
records, at low cost, with a relatively high degree of trust on both
sides of the ocean. This system did not develop overnight and certainly
grievous errors have been perpetrated on children and adoptive and birth
families in the past. However, we would do well to learn from those
experiences. There is no reason to re-invent the wheel.

If we truly believe in providing the highest standard of adoption
services, then they should be available to all children in all
countries. If those services (or the infrastructure to provide them) are
not present, we have an obligation to provide education and monetary
support to make sure they happen. Without those principles in mind, we
are setting ourselves up for a future of adoption disasters and
scandals. With the implementation of the Hague Convention on the
Protection of Children and Cooperation in Respect of Intercountry
Adoption, we have a golden opportunity to set up regulations to truly
protect children. Other countries will be watching us closely during
this process. This is our chance to do it right so that we can continue
to do it in the best way possible in the future.

> The views expressed above are entirely those of Dr. Jenista and should
> not be construed as representing the Provisional Section on Adoption
> nor the American Academy of Pediatrics.

[^1]: Only a very critical parent might notice that the staff is listed
    only by first name and nowhere is it mentioned that this group is
    not a licensed adoption agency in any country. Nor does it comment
    that the \$9000 of services provided can be obtained by the parents
    by themselves for a quarter of the cost. It does say, however, that
    it provides post-placement support in the form of referral to parent
    groups.