**Comments of the American Adoption Congress**

**Concerning Proposed State Department Regulations**

**on Intercountry Adoption, 22 CFR Part 96**

The American Adoption Congress hereby submits its comments concerning
the regulations proposed by the State Department to implement the Hague
Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption ("the Convention") and the Intercountry Adoption
Act ("IAA").

The American Adoption Congress, founded in 1978, is a national volunteer
organization composed of adoptees, adoptive parents, birth parents and
adoption professionals committed to adoption reform. Through education
and advocacy, it attempts to promote honesty, openness and respect for
family connections in adoption.

The proposed regulations, 22 CFR Part 96, contain many commendable
provisions, and reflect close attention by the Department to the
comments previously submitted by all parties through Acton Burnell.
However, we believe that many serious problems remain.

The most serious problem is the Department's embrace of the collegial
model of accreditation. As stated in the preamble concerning substantial
compliance:

> The Department believes that the use of an accreditation system based
> on substantial compliance and the opportunity to improve, rather than
> a strict licensing scheme, to regulate the agencies and persons is
> more consistent with the regulatory approach contemplated by the IAA.
> (68 FR at 54080)

We believe this approach is fundamentally inconsistent with the
Convention and the IAA, and will frustrate their purposes. The purpose
of the Convention is "to establish [safeguards]{.underline} to ensure
that intercountry adoptions take place in the best interests of the
child" (Convention, Article 1a, emphasis added). The purpose of the IAA
is "to [protect the rights of and prevent abuses against]{.underline}
children, birth families and adoptive parents..." (IAA, § 2(b)(2)),
emphasis added). To achieve these goals, the IAA "[mandat\[es\] tough,
more uniform standards]{.underline} for those who provide international
adoption services..." (H. Rept. 106-691 (2000) at p. 14; emphasis
added).

To accomplish the IAA's purpose of preventing abuses by mandating tough,
more uniform standards requires that accreditation under the IAA
[enforce]{.underline} those standards. A "strict licensing scheme" is
required, rather than merely an "opportunity to improve." This issue is
discussed in more detail in our comments below on proposed Sections
96.24, etc.

We also believe that several of the proposed regulations would
improperly weaken specific provisions of the IAA and the Convention.
These are discussed in our comments below concerning the provisions in
question.

A further problem is the Department's attempted reliance on agreements
between the Secretary and individual accrediting entities to establish
standards and procedures of accreditation. As stated in more detail in
our comments on Section 96.9, etc., we believe this procedure would
violate both the IAA and the Administrative Procedure Act.

We respectfully suggest that correction of the substantive and the
procedural aspects of the proposed regulations will require
republication of amended proposals with an opportunity for further
comment.

We have organized our comments to correspond with particular sections or
related groups of sections of the proposed regulations, in numerical
order, as follows:

*Section Page*

96.6(h) 3

96.9, 96.27(d) and 96.71(a) 4

96.14(c)(2), 96.44(a), 96.45(b)(8) & C and 96.46(b)(9) & (c) 5

96.24(b) & (c), 96.60(a), 96.66 7

96.25(a) 10

96.26(a) 11

96.26(b) 13

96.27(a) & (d) 14

96.33(h) 15

96.39(d) 15

96.42(a) 22

96.42(d) 23

96.49(a) & (b) 24

96.49(k) 25

96.53(a) 25

96.53(c) 26

96.54(a) & (b) 27

96.54(d) 29

96.69(a)(4) & 96.70(b)(1) 30

96.91(b) 30

96.92(b) 31

**§ 96.6(h).** This provision requires that an accrediting entity
demonstrate that "it can comply with any conflict-of-interest
prohibitions set by the Secretary in the request for statements of
interest." There are two problems with this proposal.

First, for the reasons stated below in our comment on §§ 96.9 *et al.,*
the conflict-of-interest prohibitions must be established in the
regulations themselves, promulgated by notice and comment, rather than
in private agreements between the Secretary and an accrediting entity.

Second, the request for statements of interest contains no
conflict-of-interest prohibitions. The request merely asks the
applicants what safeguards they have.

Conflict-of-interest prohibitions will be crucial to the success of any
accrediting scheme. Collegial model accrediting entities are generally
beset by conflicts of interest because the persons with sufficient
experience to accredit usually currently work in the industry, have
worked for it, or hope to work for it in future. In addition, the
entities are often created or governed in part by members of the
industry being accredited.

The regulations concerning conflicts of interest should be promulgated
by notice and comment and should require that accrediting entities not
be subject to any control or influence by adoption providers. The
regulations should further prohibit accreditation team members and
reviewers from being currently employed by an adoption provider or
becoming so employed within a reasonable period (e.g. one year) after
participating in any accreditation of that or any other provider.

**§§ 96.9, 96.27(d) and 96.71(a).** These sections provide that certain
standards and procedures to be used by accrediting entities shall be
determined not by the regulations subject to notice and comment, but by
agreements between the accrediting entity and the State Department. In
other words, these standards and procedures will be privately negotiated
between the State Department and the accrediting entity without any
opportunity for comment or any other input from the public. Not only is
this unwise, but it violates both the IAA and the Administrative
Procedure Act.

Section 203(a)(2) of the IAA requires that the Secretary, in developing
the regulations that prescribe accrediting standards and procedures,
"consider any standards or procedures developed or proposed by, [and the
views of]{.underline}, individuals and entities with interest and
expertise in international adoptions and family social services ..."
(emphasis added).

Section 203(a)(3) of the IAA requires that the regulations be developed
and issued under the notice and comment provisions of 5 U.S.C. § 553(b),
(c) and (d). (The exceptions in 5 U.S.C. § 553(a) are therefore not
applicable.)

Among the matters that these sections of the proposed regulations would
remove from public input are:

-   Accrediting fees (§ 96.9(b));

-   Handling of complaints (§ 96.9(c) and 96.71(a));

-   Communication and accountability between accrediting entity and
    providers (§ 96.6(e));

-   Weighting by points of each different standard (or element thereof)
    and the effect of such weighting (§ 96.27(d)); and

-   "Other matters upon which the parties have agreed" (§ 96.9(f)).

Each of these subjects is or may be crucial, and each requires notice
and an opportunity for public comment. For example, the weighting of
different standards and the effect of such weighting could magnify or
effectively eliminate the effect of any standard. The last item ("other
matters") could create unlimited mischief.

All of the standards and procedures should be subject to both notice and
comment, whether by a separate rule-making proceeding or a second round
of notice and comment in this proceeding. Otherwise it is doubtful that
these regulations will be upheld in court.

**§§ 96.14(c)(2), 96.44(a), 96.45(b)(8) & (c) and 96.46(b)(9) & (c).**
These pro­visions require pro­viders to assume responsibility for their
agents ("supervised providers") through whom they arrange adoptions.
These provisions are essential to carry out the purposes of the
Convention and of the IAA. They are essential for the protection of
adoptive parents, birth parents and adoptees. They are required by the
IAA and the Convention.

It is both essential and appropriate that primary providers be
responsible to their clients for the conduct of the "supervised
providers." The primary provider selects the supervised providers, the
primary provider usually has a continuing relationship with the
supervised provider, the primary provider has the knowledge and
facilities to investigate the supervised provider, the primary provider
usually pays the supervised provider, the primary provider can exercise
infinitely more control over the supervised provider than can an
adoptive parent or other client, and the adoptive parent or other client
is usually inexperienced with adoption and emotionally vulnerable. If
the primary provider is not responsible, the adoptive parents or other
clients will usually be helpless to protect themselves.

The substance of these regulations is required by the IAA and the
Convention. Section 203(b)(1)(F) of the IAA mandates that the standards
for accreditation [require]{.underline} that an accredited agency

> has established adequate measures to comply ([and to ensure compliance
> of their agents]{.underline} and clients) with the Convention, this
> Act, and any other applicable law. (emphasis added.)

Furthermore, Article 10 of the Convention states:

> Accreditation shall only be granted to and maintained by bodies
> demonstrating their competence to carry out properly the tasks with
> which they may be entrusted.

A provider which fails or refuses to take responsibility for its agents
or to control them can scarcely be said to have "established adequate
measures ... to ensure compliance of \[its\] agents ... with the
Convention, this Act and any other applicable law." Nor can it be said
to have demonstrated its "competence to carry out properly the tasks
with which" it is entrusted.

Foreign agents or "facilitators" of U. S. adoption providers have been
responsible for some of the worst abuses. As the House Committee on
International Relations found:

> Abuses by less reputable agencies range from the charging of
> exorbitant fees by so-called "facilitators" in some countries to even
> cases of child kidnapping and coerced parental consent.
>
> \* \* \*
>
> Stories in the press and relayed by prospective adoptive parents also
> described the deceptive practices of so-called "facilitators" in
> countries of Eastern Europe. Medical records are often not given to
> the prospective adoptive parents before they travel, or are
> incomplete, and the parents only learn upon arrival of significant
> medical problems. Other times, upon arrival, prospective adoptive
> parents are told that the child they thought they were adopting had
> already been adopted, but that another child (often with undisclosed
> medical or developmental problems) is "available."

H. Rept. 106-691, pp. 13-14.

Absent responsibility for supervised providers, unscrupulous and
irresponsible providers would be free to use agents or "facilitators"
who buy or abduct children or who suppress essential medical and social
information about the children. So long as the agent did not explicitly
inform the primary provider, the latter could avoid legal responsibility
and wash its hands of the consequences. As the State Department is only
too well aware, such abuses continue to happen in many foreign
countries, particularly the poorest.

These provisions do not "create a private right of action" in violation
of Section 504 of the IAA. They merely state requirements for
accreditation. As we have stated at greater length in our comment to
Section 96.39(d), the right of action for "wrongful adoption" is simply
the old rights of action for negligence and fraud applied to adoption.
These provisions simply do not allow primary providers to avoid their
duties of due care and honesty by disclaiming responsibility for agents
whom they employ and pay.

**§§ 96.24(b) & (c), 96.60(a), 96.66.** Taken together, these provisions
would base accreditation on quadrennial examination of the provider's
"documentation" and on site visit(s). The visits "[may]{.underline}
include, but need not be limited to, interviews with birth parents,
adoptive parent(s), prospective adoptive parent(s) and adult adoptee(s)
served by the \[provider\], interviews with the \[provider's\] employees
and interviews with other individuals knowledgeable about the
\[provider's\] provision of adoption services" (§§ 96.24 and 96.60,
emphasis added). The accrediting entity would also monitor providers at
least annually and must investigate complaints and "[may]{.underline},
on its own initiative, conduct site visits ... with or without advance
notice, for purposes of random verification of \[the provider's\]
continued compliance or to investigate a complaint" (§ 96.66, emphasis
added).

The provisions of § 96.66 are an improvement over the drafts of Acton
Burnell, but these provisions taken together still reflect priorities
that are precisely the reverse of what is required, and the use of
interviews is far too restricted.

Accreditation under the Convention and the IAA should focus on actual
outcomes, not processes or paperwork. The [primary]{.underline} tool of
accreditation should be monitoring of actual performance by (1)
interviews with clients, personnel and [former personnel]{.underline} of
providers and (2) investigation of complaints. Examining documents
should be secondary.

Accreditation in other contexts is often a collegial exercise among
willing participants, intended to improve performance generally.
Accreditation to implement the IAA and the Convention, however, is a
"[safeguard]{.underline} to ensure that intercountry adoptions take
place in the best interests of the child" (Convention, Art. 1a) and to
protect rights and prevent abuses of clients (IAA, § 2(b)(2)) (emphasis
added). Accreditation of adoption providers must [enforce]{.underline}
minimum standards. As the House Committee on International Relations put
it, the IAA mandates "tough, more uniform standards for those who
provide international adoption services" (H. Rept. 106-691 (2000) at p.
14). Encouraging "best practices" may be generally desirable, but it is
not the purpose of the IAA or the Convention.

The Inspector General of the Department of Health and Human Services in
1999 found a similar problem in hospital accreditation by the Joint
Commission on Accreditation of Health Care Organizations. The Inspector
General stated:

> Joint Commission surveys are unlikely to detect substandard patterns
> of care or individual practitioners with questionable skills.
>
> \* \* \*
>
> A collegial mode of oversight is one that focuses on education and
> improved performance. It emphasizes a trusting approach to oversight,
> rooted in professional accountability and cooperative relationships. A
> regulatory mode focuses on investigation and enforcement of minimum
> requirements. It involves a more challenging approach to oversight,
> grounded in public accountability.
>
> \* \* \*
>
> The emerging dominance of the collegial mode may undermine the
> existing system of patient protection afforded by accreditation and
> certification practices.

(Department of Health and Human Services, Office of Inspector General,
"The External Review of Hospital Quality/A Call for Greater
Accountability" (July 1999)).

Implementation of the Convention and the IAA should begin with a system
of accreditation which furthers their goals, not one which tends to
undermine them.

We suggest that the core procedures of accreditation under the Act
should include methods similar to the following:

1.  The provider seeking accreditation should provide a complete list of
    > clients (i.e. adoptive parents, prospective adoptive parents and
    > birth parents) with whom the provider has dealt in a recent time
    > period. The accrediting entity should question a random sample of
    > these clients concerning the quality of services delivered by the
    > provider. The provider must notify all such clients that they may
    > be contacted by the accrediting entity and that they should speak
    > freely and frankly (such notification should commence immediately
    > to all existing and new clients). Deliberate omission of any
    > clients required to be included would be grounds for denying
    > accreditation.

2.  The accrediting entity should examine all complaints received by the
    > provider, by the Complaint Registry and by the accrediting agency
    > itself (including resolved complaints) and investigate them
    > appropriately.

3.  Records of any pending or resolved lawsuits against the provider
    > should also be reviewed.

4.  The provider seeking accreditation should supply the accrediting
    > entity with a complete list of all former employees, agents and
    > consultants whose services terminated since the last accreditation
    > examination. The accrediting entity should interview some or all
    > of these former personnel.

As a condition of accreditation, providers should be required to waive
any confidentiality requirements (a) contained in settlements of
lawsuits against the providers or (b) that were otherwise created or
imposed in order to protect the provider.

Finally, interviews of employees and former employees should not
generally be part of a site visit. Instead, such interviews should be
conducted away from the provider's premises to the greatest extent
possible, particularly when any wrongdoing is suspected. Employees
cannot be expected to speak freely on the provider's premises, and even
former employees and clients will be more inhibited on the provider's
"turf" than away from it.

The techniques we recommend are widely used by the Federal Trade
Commission and by corporate compliance programs to protect consumers.
For most providers, these techniques will require little time and
effort. Unless major abuses are found, telephone interviews of a random
sample of clients and personnel will suffice. Only where material abuses
are found would further investigation be required. These techniques
require far less time and effort and produce far more meaningful
information than the paperwork reviews on which the proposed regulations
would place primary reliance.

**§ 96.25(a).** We suggest changing "requires" to "requests." This will
make subparagraph (a) consistent with subparagraph (b). It will also
eliminate any implication that the accrediting entity has a burden to
prove that the requested information or documents are essential for
accreditation. In case of a dispute over providing information and
documents, the burden of proof should be on the provider to show that
the material requested is irrelevant and unduly burdensome to produce.
Otherwise, there is great potential for obstruction and delay on the
part of a provider that has something to hide.

**§ 96.26(a).** This provision should be deleted in its entirety. It
would cloak in secrecy all information relevant to the accreditation and
qualifications of a provider, except the very limited items specified in
§§ 96.91 and 96.92. No purpose of this regulation nor any justification
for such secrecy is stated in the preamble (p. 54080) or anywhere else
that we have found.

The concerned public should have access to all information about an
adoption provider unless there is a specific reason to keep certain
information confidential. Adoptive parents deciding whether to use a
particular provider need such information, the more specific the better.
The same is even more true of adoption professionals who must evaluate
and recommend providers. It is even true for birth families, if they are
calm enough to make such choices.

Such members of the public are entitled to all information about a
provider that they deem relevant, unless disclosure would invade some
legitimate privacy interest. They are entitled to know who operates the
agencies, what are their qualifications or lack thereof, what has been
their track record in the past, what is their compensation, etc.

In general, if information is relevant to the decision whether to
accredit a provider, the same information is relevant to any adoptive
parent deciding whether to retain that provider. Again, the same is true
for birth parents and adoption professionals. The information should be
fully available to them on request, unless disclosure would invade some
legitimate privacy interest. There is no good reason why adoptive
parents, birth parents and adoption professionals should be limited to
the minimal disclosures of §§ 96.91 and 96.92. For instance, why should
the details of substantiated complaints (except for identifying the
information about the clients) be hidden from prospective adoptive
parents?

Financial information concerning an agency is clearly not the subject of
any legitimate privacy interest. Extensive financial disclosure is
required of nonprofit organizations by federal and state law, in such
reports as the federal Form 990 and corresponding reports required by
state laws. These include functional breakdowns of income and expenses,
and details of the compensation (including perks and expense accounts,
etc.) of officers, directors, trustees and key employees. Such
information is clearly not private. If an accrediting entity has similar
information, there is no reason to require adoptive parents and members
of the public to get the information from the IRS or state agencies,
rather than from the accrediting entity. An accrediting entity should of
course be entitled to charge reasonable fees for access and copying.

The basic principle should be freedom of information concerning
providers. The burden should be upon the providers to justify
withholding of information from the public.

As the Department recognizes in the preamble (p. 54068), accreditation
under the IAA and the Convention is "dramatically" different from
voluntary accreditation in the past. Accreditation or approval is
mandatory under the IAA for providers in Convention adoptions.

Providers in Convention adoptions are not simply running a private
enterprise. They are instead performing delegated governmental functions
of the Central Authority pursuant to Article 22 of the Convention. The
appropriate model for information disclosure and privacy is therefore
the Freedom of Information Act or state analogues, rather than the
privacy of an ordinary business.

Only two classes of information disclosed to an accredited agency should
be confidential:

1.  Information identifying individual clients (adoptive parents, birth
    parents and adoptees) and

2.  Complaints that have been found to be false or unsubstantiated, or
    are still under investigation, provided the investigation is not
    unduly protracted.

Claims have been made that "trade secrets" of adoption providers are
entitled to secrecy. What legitimate trade secrets can there be in
Convention adoptions? Improved procedures should not be kept secret.
Instead they should be disseminated as widely as possible to promote
best practices.

Some providers appear to be using "trade secret" to refer to the agents
or contacts through whom they locate available children. To regard the
identity of these agents as a "trade secret" is to treat them as the
source of supply of a commodity.

Such agents are either supervised providers or employees of the primary
provider. In either case, there should be nothing secret about their
identities.

The purpose of adoption should be to find families for children, not
children for families. Keeping secret the identities of those with the
best access to waiting children would pervert adoption into a business
of supplying children. To maximize the chances of waiting children to
find families, the identities of those who can help place such children
should be as widely known as possible. Under no circumstances should
they be a "trade secret."

Furthermore, not only the identities but the qualifications and track
records of supervised providers and other intermediaries should be as
freely available as possible.

The stated purpose of the IAA is "to protect the rights of, and prevent
abuses against, children, birth families and adoptive parents...". IAA,
§ 2(b)(2). The guiding rule as to disclosure and confidentiality under
the IAA should be the maxim attributed to Justice Brandeis, "Sunlight is
the best disinfectant."

**§ 96.26(b).** The first sentence of this paragraph should be deleted.
As stated in our comment on § 96.24, monitoring the actual practices of
a provider requires a comprehensive list identifying all adoptive parent
and birth parent clients. The accrediting entity must keep such
identities confidential, as provided in the remainder of § 96.26(b).

**§ 96.27(a) & (d).** These sections provide that accreditation will
require only "substantial" compliance rather than complete compliance
with the standards for accreditation. Substantiality is to be determined
by a scoring or weighting system based on points to be assigned to each
standard. The points and the operation of the scoring or weighting
system are to be determined by negotiation between an accrediting entity
and the State Department, and incorporated not in the regulations but in
the agreement between the accrediting entity and the State Department.

For the reasons stated in our comments to §§ 96.9, 96.71(a) and this
section, if a weighting system is to be used, it must be promulgated by
notice and comment rule-making, not by private negotiations between an
accrediting entity and the State Department.

Moreover, if any weighting system is to be used, it must ensure that any
provider that does not meet [all]{.underline} of the minimum
requirements stated in § 203(b)(1)(A)-(F) of the IAA cannot be
accredited or approved. This is explicitly required by that section of
the Act.

The legislative history makes clear that the requirement was fully
intended. The report of the House International Relations Committee
states that Congress intended to mandate "tough, more uniform standards
for those who provide international adoption services." H. Rept. 106-691
(2000), p. 14. In discussing § 203(b), both committees stated that an
accredited provider "must agree to" or "must meet" the minimum
requirements, each of which the reports list in summary form, joined by
"and." S. Rept. 106-276 (2000), pp. 6-7; H. Rept. 106-691, pp. 25-26.
There is no suggestion that the Secretary, much less an accrediting
entity, can pick and choose which of the requirements on that list a
provider must meet and which it can dispense with.

Sound policy requires the same result. An agency which does not timely
provide translated medical records or provide an adequate training
program for prospective adoptive parents or fully disclose its policies,
practices and disruption rates to prospective adoptive parents, for
example, should not be arranging adoptions, regardless of any other
desirable attributes the agency may have.

**§ 96.33(h).** We fully approve of this proposal. It reasonably
implements the requirement of IAA Section 203(b)(1)(E) "to have in force
adequately liability insurance for professional negligence."

The maintenance of such insurance assures that the insurers will help
enforce safeguards of professional conduct, as they do in other
professions.

The requirement of coverage of \$1 million per occurrence is entirely
reasonable. We know of many experiences where negligence or fraud in an
adoption placement has required years of therapy and
institutionalization, and has disrupted and bankrupted families. The
actual monetary costs can easily reach \$1 million.

That insurance coverage exists helps to assure that a family victimized
by wrongful adoption will have some remedy. It does not mean that anyone
with a frivolous claim or with lesser provable damages will collect any
more than that person is entitled to. Insurers do not regard themselves
as charities, and are not noted for their generosity in litigation.

**§ 96.39(d).** We strongly support the purpose of this provision.
However, we believe the following proposed language, which is based upon
language in existing federal regulations, would more effectively
implement that purpose:

> The agency or person does not obtain from any Convention adoption
> client any agreement containing exculpatory language through which the
> client is made to waive or appear to waive any of the client's legal
> rights, or which releases or appears to release the agency or person
> or their agents from liability for negligence or intentional
> wrongdoing.

Fifteen federal departments and agencies have used similar language
since 1991 to protect persons who are the subject of research. 7 C.F.R.
§ 1c.116 (Agriculture Dept.); 10 C.F.R. § 745.116 (Energy Dept.); 14
C.F.R. § 1230.116 (N.A.S.A.); 15 C.F.R. § 27.116 (Commerce Dept.); 16
C.F.R. § 1028.116 (C.P.S.C.); 21 C.F.R. § 50.20 (F.D.A.); 22 C.F.R.
§ 225.116 (A.I.D.); 28 C.F.R. § 46.116 (Justice Dept.); 32 C.F.R.
§ 219.116 (Defense Dept.); 34 C.F.R. § 97.116 (Education Dept.); 38
C.F.R. § 16.116 (Veterans Affairs Dept.); 40 C.F.R. § 26.116 (E.P.A.);
45 C.F.R. § 46.116 (Health and Human Services Dept.); 45 C.F.R.
§ 690.116 (N.S.F.); 49 C.F.R. § 11.116 (Transportation Dept.). Each of
these regulations provides:

> No informed consent, whether oral or written, may include any
> exculpatory language through which the subject or the representative
> is made to waive or appear to waive any of the subject's legal rights,
> or releases or appears to release the investigator, the sponsor, the
> institution or its agents from liability for negligence.

To the best of our knowledge, no case has invalidated or even questioned
the validity of this language. It has been construed and discussed in
several reported decisions. *Slater v. Optical Radiation Corp.,* 961
F.2d 1330, 1334 (7^th^ Cir. 1992); *Gile v. Optical Radiation Corp.,* 22
F.3d 540, 543 (3^rd^ Dept. 1994); *Hunsaker v. Surgidev Corp.,* 818 F.
Supp. 744, 750 (M.D. Pa. 1992); *Kraemer-Katz v. U. S. Public Health
Service,* 872 F. Supp. 1235, 1241 (S.D.N.Y. 1994); *Vodopest v.
MacGregor,* 128 Wash. 2d 840, 857, 913 P.2d 779, 787 (1996); *Connelly
v. Iolab Corp.,* 927 S.W.2d 848, 854-55 (Mo. 1996).

Many state statutes also prohibit exculpatory language waiving
negligence claims in a variety of contexts, because of imbalance of
bargaining power or for other reasons. E.g., Conn. Gen. Stat. § 52-572w
(caterers); Del. Code, ch. 55, § 5510 (landlords); Md. Real Prop. Code,
§§ 8-105 (landlords), 8A-1502 (mobile home parks); Mass. Gen. Laws, Ch.
186, § 15 (landlords); N.Y. Gen. Obl. Law, §§ 5-321 (landlords), 5-322
(caterers), 5-323 (service and maintenance contractors); 5-325 (garages
and parking lots), and 5-326 (pools, gyms and places of public amusement
and recreation); Uniform Residential Landlord and Tenant Act (1972),
§ 1.403(a)(4) (enacted in fifteen states --- Alaska, Arizona, Florida,
Hawaii, Iowa, Kansas, Kentucky, Montana, Nebraska, New Mexico, Oregon,
Rhode Island, South Carolina, Tennessee and Virginia).

Those in regulated occupations affected with a public interest,
especially professionals rendering essential services to clients or
patients dependent on them, are generally prohibited from seeking such
exculpatory provisions or from relying on them. Lawyers are specifically
prohibited from using such provisions, e.g., Model Code of Professional
Responsibility, Disciplinary Rule 6-102 ("A lawyer shall not attempt to
exonerate himself from or limit his liability to his client for his
personal malpractice"); *Restatement, 3d,* Law Governing Lawyers (2001)
§ 54(2) ("An agreement prospectively limiting a lawyer's liability to a
client for malpractice is unenforceable").

Courts generally refuse to allow health professionals to rely on such
provisions. *Tunkl v. Regents of the University of California,* 60 Cal.
2d 92, 383 P.2d 441 (1963) (hospital treating charity patient without
fee); *Meiman v. Rehabilitation Center, Inc.,* 444 S.W.2d 78, 79-80 (Ky.
1969) (rehabilitation center); *Olson v. Molzen,* 558 S.W.2d 429, 430
(Tenn. 1977) (osteopath performing abortion) ("The rules that govern
tradesmen in the marketplace are of little relevancy in dealing with
professional persons who hold themselves out as experts and whose
practice is regulated by the state"); *Emory University v. Porubiansky,*
248 Ga. 391, 282 S.E.2d 903 (1981) (dentist and dental school operating
dental clinic); *Ash v. New York University Dental Center,* 164 A.D.2d
366, 564 N.Y.S.2d 308 (1^st^ Dept. 1990) (dental clinic offering reduced
fees); *Creed v. United Hospital,* 190 A.D.2d 489, 600 N.Y.S.2d 151
(2^nd^ Dept. 1993) (fertility program; *dictum*); *Vodopest v.
MacGregor,* 128 Wash. 2d 840, 913 P.2d 779 (1996) (nurse conducting
research); Anno., "Validity and Construction of Contract Exempting
Hospital or Doctor from Liability for Negligence to Patient," 6 ALR 3d
704 (1963) **\[?\]**

Thus there is ample precedent, administrative, legislative and judicial,
for the proposed regulation. And some such regulation is essential to
implement the Convention and the IAA.

Many, if not most international adoption providers now require their
clients to waive all possible claims, including claims for negligence
and fraud. World Child, Inc. and the Frank Foundation require their
clients to waive "any and all claims" that might arise in future against
those agencies. *Ferenc v. World Child, Inc.,* 977 F. Supp. 56, 60-61
(D.D.C. 1997), aff'd 172 F.3^rd^ 919 (D.C. Cir. 1998). Alliance for
Children, Inc. requires its clients to "indemnify and hold harmless
\[agency\] from any problems or liability" and "from all liability and
damages arising out of, or associated with, the placement of the child
in the home of the Adoptive Parents" and to "agree not to hold
\[agency\] ... responsible for any medical conditions which might
develop, or be discovered in the future." Cooper, *Enforcement of
Contractual Release and Hold Harmless Language in "Wrongful Adoption"
Cases,* [Boston Bar Journal]{.smallcaps} (May/June 2000), 14, 15, 27.

Such waivers have no legitimate function in international adoptions. The
issue is not whether agencies should be required to guarantee the
medical condition or any other aspect of the children. No law imposes
any such obligation. State laws impose liability only for deceit and
negligence. There is no applicable federal law; IAA § 504 specifically
prohibits a private right of action under the IAA, which is the only
relevant federal law.

There is no strict liability in adoption, with or without either version
of the proposed regulation. Providers are simply required to exercise
due care and are prohibited from lying.

Waivers such as those quoted above seek to exempt providers from even
these modest requirements. A provider that cannot meet such requirements
should not be arranging adoptions.

Some providers and their organizations have tried to justify such
waivers as simply educating prospective adoptive parents on the risks of
international adoption, especially possible medical conditions and
deficiencies in medical records. Those are not the risks that adoptive
parents are asked to waive. No provider is required to guarantee a
child's condition or the accuracy of the medical records kept by
orphanages. The risks that parents are asked to waive are that the
provider and its agents may be negligent or dishonest.

A fair statement of the risks that the parents are asked to waive would
have to read, in substance:

> We understand that Provider and its agents may be negligent in
> obtaining medical and other information about a child and in
> disclosing such information to us. We also understand that Provider
> and its agents may intentionally fail to disclose such information to
> us or may misrepresent such information.

Only such straightforward language could fully alert prospective
adoptive parents to the risk of waiving claims of negligence and
intentional wrongdoing. To the best of our knowledge, no provider is so
forthright. Instead, they describe risks that appear to be outside their
control. Then they add the blanket waiver that exculpates them from all
claims, including negligence and misrepresentation, without using those
words.

The consequences of negligence and misrepresentations in international
adoptions have been horrendous. Adoptions have disrupted, stranding
gravely disturbed children in custodial institutions thousands of miles
from their native countries, and adoptive families have been
impoverished and disintegrated by divorce. The law can do little to mend
disrupted adoptions and families, but it can help avoid the economic
harm. Damage awards can ameliorate the financial hardship imposed on
adoptive families, and will also deter unethical providers from
negligence and misrepresentation. Allowing providers to avoid the law's
minimal requirements through blanket waivers leaves adoptive families to
bear the burdens created by the providers' failings.

Such waivers are imposed on prospective adoptive parents. They are not
the result of a fair, arm's-length bargaining process. Prospective
adoptive parents are often infertile and emotionally vulnerable. They
become even more vulnerable when presented with a video tape or
photograph of an appealing child.

In international adoption, prospective adoptive parents are at an
additional disadvantage because they must deal with foreign languages,
laws and institutions. As a result, they are almost totally dependent on
the providers. There is an overwhelming imbalance of bargaining power.

If providers are not responsible for negligence and misrepresentation,
they are not rendering professional services, but selling children, and
selling them "as is." Such practices may be acceptable in the used car
business; they should have no place in adoption.

Providers and their organizations will probably cite *Ferenc, supra,*
and *Regensburger v. China Adoption Consultants, Ltd.,* 138 F.3d 1201
(7^th^ Cir. 1998), which enforced broad waivers of liability. In the
first place, those cases appear to have been inadequately argued and
wrongly decided. Neither opinion mentioned the precedents cited above
(*Tunkl,* etc.) which consistently refused to allow health professionals
to rely on such waivers. But *Ferenc* and *Regensburger* show why the
proposed regulation is essential. The outcomes of particular lawsuits
can depend on which party has better legal representation and deeper
pockets. That balance of forces will usually favor providers. The
proposed regulation is needed to ensure that providers and their agents
are reasonably careful and honest.

Some providers may claim that the proposed regulation will put them out
of business. It is hard to understand how requiring reasonable care and
simple honesty would have that result, but in any event the experience
of other professions and businesses indicates the fear is ill-founded.
Lawyers continue to practice law, although they cannot contract away
malpractice liability. Doctors, dentists, hospitals and clinics continue
to practice medicine and dentistry, although they also cannot contract
away such liability. Experimenters continue to work with human subjects,
often at great risk, although the federal regulations cited above
prevent them from exculpating themselves from negligence. And
notwithstanding the multitudinous state statutes cited above, landlords,
caterers, service contractors, garages, parking lots, pools, gyms, etc.
remain in business notwithstanding their inability to contract out of
liability for negligence. The world goes on and the sky does not fall.
The affected professions and businesses simply operate more safely, and
perhaps with higher insurance costs.

The proposed regulation (either as drafted by the State Department or as
suggested above) does not create a new private right of action. Existing
state common law long ago created rights of action for negligence and
fraud. As applied to adoption, these old rights of action have acquired
the name "wrongful adoption," but the causes of action are old. The
proposed regulation only prevents providers from seeking to avoid their
obligations under existing common law. The regulation no more creates a
right of action than do the federal regulations cited above concerning
informed consent, or the state statutes cited above, or Disciplinary
Rule 6-102, or the decisions cited above which prohibit health
professionals from avoiding their duty of due care.

Nor does the proposed regulation (in either version) shift risk. It
leaves the risk exactly where existing law places it. It prevents
providers from improperly shifting the risk of their own negligence and
fraud onto their clients.

The IAA contemplates and indeed requires that providers be liable for
negligence. Section 203(b)(1)(E) requires providers to carry "adequate
liability insurance for professional negligence." This requirement will
have several salutary effects, but only if the providers are subject to
liability. The insurance will assure that if adoptive parents are
injured by a provider's negligence, they will have a financial remedy.
In effect, it will distribute the risk of such negligence among the
adoptive parent clients of that provider, rather than crushing those who
have the misfortune to receive a severely disturbed child. Furthermore,
the insurance carriers will themselves act to assure due care by the
providers in order to reduce the carriers' losses, just as happens in
industrial and commercial liability coverage. All these benefits will be
lost if providers are allowed to insulate themselves from liability by
contractual language.

Because of its economic consequences, the Act's requirement of insurance
also mandates that waivers of this sort be prohibited by industry-wide
regulation. Otherwise the insurers, in order to reduce their losses and
maintain competitive premiums, might be forced to require their insured
providers to extract such waivers from adoptive parents.

**§ 96.42(a).** We recommend that the phrase "the period of time
required by applicable State law" be replaced by "a period of not less
than seventy-five (75) years after the adoptee's birth."

As proposed by the Department, this section would require providers to
retain adoption records only "for the period of time required by
applicable State law." The preamble notes that while the Convention
requires that a child's social and medical information be preserved, it
does not specify the period. The preamble requests comment on whether a
uniform federal time frame for retention should be included.

We believe that a uniform minimum retention period should be established
in the regulations, and that it should be a minimum period of 75 years,
similar to that established by § 98.2.

Preservation is required by the Convention (Art. 30). That requirement
supersedes inconsistent state law, pursuant to Article VI of the
Constitution and § 503 of the IAA.

Section 401(c) of the IAA provides that state law shall govern only
disclosure of and access to adoption records. The IAA gives state law no
role concerning preservation of adoption records.

The retention period of at least 75 years is amply justified by
experience. We know of many adoptees who have sought such records in
their seventies and even later.

Retention periods set by state law for records held by providers are
often unreasonably short. Arizona requires attorneys to hold adoption
records for only seven years (Ariz. SB 1090 (2003), sec. 2). (By
contrast, attorneys have no problem retaining wills, often in bank
vaults, for as long as the testators live. The attorney who drafts a
will is frequently named in the will as an executor entitled to
commissions.) The laws of other states set minimum retention periods
that range from 22 years to "forever."

If applicable state law requires retention beyond 75 years, that state
law will also apply. A state law requirement longer than 75 years will
be consistent with the 75-year period, since the latter is only a
minimum period. Under § 503(a) of the IAA, the Convention and the IAA
supersede only inconsistent state law.

**§ 96.42(d).** We suggest that the words "pursuant to applicable state
law" be added at the end of this provision or that the provision be
deleted, in order to make clear that disclosure and access to adoption
records is governed by applicable state law pursuant to § 401(c) of the
IAA. The proposed language of this section might be read to impose some
additional standard of privacy and non-disclosure, although that is not
the Department's intention. Since the IAA specifically remits disclosure
and access of adoption records to state law, we believe the best course
would be simply to delete this provision.

**§ 96.49(a) & (b).** These provisions do not comply with the IAA and do
not adequately protect prospective adoptive parents and adoptees. These
provisions should be replaced by the precise language of
§ 203(b)(1)(A)(i) of the IAA.

IAA § 203(b)(1)(A)(i) requires an accredited agency to provide to
prospective adoptive parents

> a copy of the medical records of the child (which, to the fullest
> extent practicable, shall include an English-language translation of
> such records) on a date which is not later than the earlier of the
> date that is 2 weeks before: (I) the adoption; or (II) the date on
> which the prospective parents travel to a foreign country to complete
> all procedures in such country relating to the adoption.

That production date is hereafter called "the statutory production
date."

The two-week interval that determines the statutory production date and
the "fullest extent practicable" qualification of the translation
requirement were both carefully considered legislative compromises. They
cannot and should not be changed by regulation.

The proposed regulation purports to require the child's medical records
to be produced by the statutory production date, but it sets no date for
production of the translation, and it allows production of summaries or
compilations on the statutory production date while allowing the
provider to produce the original medical records at an unspecified but
presumably later time. These provisions do not comport with the statute
and they do not adequately protect prospective adoptive parents.

The only change from the statutory language might be the substitution of
"all available medical records" for the statutory phrase "the medical
records." This would recognize that some records may be unavailable,
while requiring the provider to make all reasonable efforts to find and
produce the records.

There should be no question that both the records and the translations
must be produced by the statutory production date. In our opinion the
two-week period is already too short, but it is in the statute and it is
a compromise between the views of groups such as ours and various
provider groups. It cannot be shortened further.

**§ 96.49(k).** We recommend that the words "a week (unless ...
decision)" be replaced by "two weeks."

This provision, as proposed, would effectively allow a provider to
require prospective adoptive parents to decide whether to accept a
referral of a particular child in as short a period as the provider
chooses. The provision states that the minimum period of time should be
at least a week "unless extenuating circumstances involving the child's
best interest require a more expedited decision." As a practical matter,
that language would leave it up to the provider to decide whether such
"extenuating circumstances" exist. Will an accrediting team examine the
record of each referral and investigate whether in fact there were
extenuating circumstances?

The regulation properly notes that prospective adoptive parents need
time

> to consider the needs of the child and their ability to meet those
> needs, and to obtain physician review of medical information and other
> descriptive information, including videotapes of the child.

Only a very few pediatricians are qualified to advise in these cases.
Their practices are very busy. One week is scarcely enough time to send
them the medical information and videotapes, for them to examine it, and
to advise the prospective adoptive parents. After the consultation, the
prospective adoptive parents need additional time to make what is often
an agonizing decision. Those are among the reasons for the two-week
minimum period in § 203(b)(1)(A)(i) of the IAA.

For the reasons outlined above, the minimum period to withdraw a
referral should be two weeks, with no exceptions. Anything less is both
inhumane and inconsistent with the IAA.

**§ 96.53(a).** Section 303(a)(1)(A) of the IAA requires the provider
arranging a Convention adoption involving emigration to "Ensure that ...
a background study on the child is completed." The proposed regulation
would require that "the agency or person takes all appropriate measures
to ensure that a child background study is performed...." The phrase
"takes all appropriate measures to ensure" should be changed to
"ensures" to conform with the IAA.

IAA § 303(a)(1)(A) requires results, not efforts or process.
Accreditation should examine whether the results have been achieved, not
just whether the right instructions are in the provider's S.O.P. The
proposed regulatory language is an unnecessary and illegal weakening of
the IAA requirement.

**§ 96.53(c).** This provision concerning required consents from birth
parents and others tracks Articles 4c and d of the Convention except
that the Convention requires the "competent authorities of the State of
origin" (here, the accredited or approved provider, by delegation) "to
ensure" that required consents have been properly obtained. The
regulation weakens this to "takes all appropriate measures to ensure."
That phrase, like the similar language in § 96.53(a), unnecessarily and
illegally weakens the requirement of the Convention. The phrase should
be replaced by "ensures."

Subsection 96.53(c)(1) states subjects on which birth parents and others
must be counselled. At its end there should be added, "and that it will
result in the child living in a foreign country, namely \[name of
country or countries intended\]." It will be material to many birth
parents that their consent to adoption will result in their child living
abroad, and in a particular foreign country. For a parent, emigration is
drastically different from adoption in this country, and emigration to a
nearby, similar country like Canada differs materially from emigration
to a country like Germany or Saudi Arabia.

The proposed regulation states that if the child is old enough to be
counselled, the child must be told that the adoption will involve
emigration (§ 96.53(c)(5)). The birth parents are even more entitled to
that information, plus the specific country of destination. To withhold
such information from a birth parent, who may assume that her or his
child will be adopted in this country, would be tantamount to fraud.

**§ 96.54(a) & (b).** We recommend:

i.  In subparagraph (a), deleting "or in the case ... over the case."

ii. Replacing subparagraphs (1) and (2) of subparagraph (a) by the
    following:

```{=html}
<!-- -->
```
1.  Listing for at least thirty (30) calendar days after the birth of
    > the child, on the internet web site
    > \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ maintained by
    > \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, the same information about the
    > child (except for translation), as has been or will be given to
    > prospective foreign adoptive parents;

2.  Disseminating the same information, including the child's
    > availability for adoption, through print, media, and other
    > internet resources designed to communicate with potential
    > prospective adoptive parent(s) in the United States;

```{=html}
<!-- -->
```
iii. Deleting from subparagraph (b) the phrase "or that making such
     reasonable efforts was not in the best interests of the child."

Section 303(a)(1)(B) of the IAA requires that before a child residing in
the U. S. may be placed abroad, the provider must have been unable
"timely" to find prospective adoptive parents in the United States,
despite "reasonable efforts to actively recruit and make a diligent
search for" such parents. Children are often placed abroad to obtain
higher fees or to evade requirements of state law such as birth father
consent.

This provision of the IAA was intended to prevent such abuses. The
Senate Foreign Relations Committee stated that it expected this
provision to result in only "a small number of U. S. children being
adopted by citizens of other countries." S. Rept. 106-276 (2000), pp.
9-10.

The regulations implementing this provision of the IAA must be
sufficiently definite to prevent evasion. It is no objection that such
regulations may make it so difficult to place children abroad that very
few are so placed. As noted above, Congress anticipated that result.

The proposed regulations subvert the IAA's express provisions and
intent. They begin, "Except in the case of adoption by relatives or in
the case in which the birth parent(s) have identified specific
prospective adoptive parent(s) or in other special circumstances
accepted by the State court with jurisdiction over the case...." The
first exception may be justified as a humanitarian exception for a rare
situation not contemplated by Congress and one which can easily be
verified. The other two exceptions are entirely unjustifiable and
unauthorized and should be eliminated.

The proposed birth parent identification exception is an invitation to
baby-selling by unscrupulous birth parents and baby brokers, as at least
one notorious recent example illustrated. Furthermore, in most cases
there will be no way to know whether the identification was suggested by
the birth parent, the provider or a baby broker. If this exception were
allowed to remain, some providers would prepare letters for birth
parents' signatures, purporting to identify specific foreign adoptive
parents. Such letters would be submitted to the birth parents in the
sheaf of documents that birth parents routinely sign, and would then be
submitted to the state court as one more item in that sheaf. Adoption
proceedings are seldom adversary; birth parents and the child seldom
have genuine representation in such hearings. It is exceedingly unlikely
that any judge presiding over such proceedings would independently
question a claim that the absent, unrepresented birth parents identified
the prospective adoptive parents. If any judge did so, we can be
reasonably sure that competent adoption attorneys would thereafter avoid
that judge.

The exception for "other special circumstances" is an even bigger
loophole. Because adoption hearings are seldom adversary, the judges
hearing them would be unlikely to question an allegation of such
"special circumstances" or to find the allegations inadequate. This
exception alone would completely vitiate the statute.

The remainder of § 96.54(a) is also completely inadequate. It requires
the provider only to disseminate unspecified "information on the child
and his or her availability" through unspecified media "designed to
communicate with" prospective U. S. adoptive parents, and to list
unspecified "information about the child on a national or State adoption
exchange or registry" for a thirty-day period. These requirements are so
vague as to be easily evaded. Any provider bent on placing a child
abroad would simply find obscure media and an obscure adoption registry
and emphasize the child's negative features.

We suggest that the State Department specify a single national web site,
so that prospective adoptive parents can go to a single, well-known
source, and that the information to be posted be exactly the same
information (except for translation) as has been or will be given to
prospective foreign adoptive parents. The web site could be maintained
by the Department, the National Adoption Information Clearinghouse, or
any other organization designated by the Department.

The last clause of proposed § 96.54(b) is flatly contrary to the IAA. It
would allow a provider to avoid [all]{.underline} efforts to find U. S.
adoptive parents on the vague ground that making such efforts "was not
in the best interests of the child." There is no such exception in the
statute and none should or legally can be created. Given the
perfunctory, non-adversary nature of adoption hearings in many state
courts, this vague loophole would be yet another invitation to evasion.
It too should be deleted.

**§ 96.54(d).** If the Department accepts our recommendation that
§ 96.53(c)(1) be amended to require that birth parents be told the
country to which their child will be sent, then the phrase "and fully
discloses ... United States" and the end of this section may be deleted.

**§§ 96.69(a)(4) & 96.70(b)(1).** We recommend that in § 96.69(a)(4),
after the words "If the complaint cannot be resolved" there be inserted
"within sixty (60) days," and in § 96.70(b)(1), the same phrase be
inserted after the word "resolved."

Without such an amendment, unscrupulous providers could prevent the
filing of complaints indefinitely by delaying resolution, and even
ethical providers will be tempted to give lower priority to complaint
resolution. Access to the complaint registry should be delayed no more
than is needed to weed out frivolous complaints and eliminate those that
can be resolved with reasonable efforts. If a dispute cannot be resolved
in sixty days, there is no good reason to bar the complainant from
filing with the complaint registry. A longer delay is not likely to
improve the chance of resolution, but only to make the information
staler.

The exact period for which a complainant would be barred from filing
with the complaint registry, whether thirty, sixty or ninety days, etc.,
is less important than establishing some reasonable time limit. We
believe that sixty days should be enough time to resolve most complaints
that can be resolved amicably.

**§ 96.91(b).** We recommend that this proposed regulation be amended by
striking "and" after subsection (2) and adding at the end of subsection
(3):

> and

4.  any other information concerning a specific agency or person except

```{=html}
<!-- -->
```
A.  information identifying prospective or actual adoptive parents,
    > birth parents or adoptees;

B.  complaints which have been determined to be false or substantiated;
    > and

C.  complaints which are being investigated by the complaint registry or
    > accrediting entity and which were filed less than six months
    > earlier.

The reasons for this recommendation are spelled out at length in our
comment to § 96.26(a). The basic reason is that any information which is
relevant to accreditation is relevant to anyone trying to decide whether
to retain, to recommend, or to have any relations with the provider in
question, and only the three exceptions stated above would further any
legitimate privacy interests.

**§ 96.92(b).** We recommend that this paragraph be replaced by the
following:

> Unless a complaint has been found to be false or unsubstantiated or
> was filed less than six (6) months ago and is still under
> investigation, all information about the complaint may be disclosed to
> the public upon inquiry, except information that would identify the
> complainant or any prospective or actual adoptive parent, birth parent
> or adoptee.

The reasons for this recommendation are stated at length in our comment
upon § 96.26(a).

December 15, 2003

Respectfully submitted,

[American Adoption Congress]{.smallcaps}

By: Marilyn Waugh, President

Carolyn Hoard, Legislative Director

Fred Greenman, Legal Advisor