To: United States Department of State

Re: Comments to regulations implementing the 1993 Hague Convention on
Protection of Children and Cooperation in Respect of Intercountry
Adoption (the Convention) and the Intercountry Adoption Act of 2000 (the
IAA).

Docket Number: State/AR-01/96

From: David M. Smolin

Professor of Law

Cumberland Law School

Samford University

800 Lakeshore Drive

Birmingham, Alabama 35229

205-726-2418

<dmsmolin@Samford.edu>

Date: November 5, 2003

These comments are designed to assist the Department of State in
creating final regulations which will more effectively implement the
fundamental purposes of the Convention and the IAA. These comments
reflect my experiences as an adoptive parent of children from Andhra
Pradesh, India, a State within India that has been mired in intercountry
adoption scandals for many years. These comments also reflect my
expertise as a law professor, who has taught and/or written in a number
of relevant areas, including international children's issues,
international human rights law, family law, juvenile law, constitutional
law, and criminal law. While the views stated are my own, these comments
reflect the experience that comes with interacting with a wide variety
of persons involved in intercountry adoption, including adoptive
parents, adoptees, agency personnel, and professionals involved in
assessing and educating children. Unfortunately, I have no direct
experience with birth families, although I have reviewed interviews and
studies related to their situations.

These comments do not represent the views of my employer, Samford
University, nor any other organization with which I may be affiliated.

In order to more fully assist the Department, these comments will
contain specific suggestions for deletions, additions, and alterations
to the proposed rule, including suggesting the use of specific language.

In order to set the premises for these very specific suggestions, these
comments will begin with a brief overview of the purposes of the
Convention and the IAA

**I. FUNDAMENTAL PURPOSES OF THE CONVENTION AND THE IAA**

Some of the fundamental purposes of the Convention and IAA, as
interpreted within the context of international and national law, can be
summarized as follows:

\(1\) Facilitating intercountry adoption as a positive option for
providing families for orphans, to be employed only when efforts to
maintain the child within the birth family are either unsuccessful or
contrary to the best interests of the child, and where in-country
adoptive placement is not possible.

\(2\) To prevent "the abduction, the sale of, or traffic in children."
*See* Convention Art. I(b).

\(3\) To "protect the rights of, and prevent abuses against, children,
birth families, and adoptive parents\...." *See* IAA, section 2(b)(2).

\(4\) To ensure that intercountry adoptions are "in the children's best
interests." *See* IAA, section 2(b)(2).

\(5\) In implementation of the above, to ensure a reliable system of
inter-country adoption, where (1) birth families are assisted and
encouraged, where possible, to keep their children; (2) no undue
coercion or improper financial inducements for relinquishment are
employed; (3) countries of origin make, systematically and in each
individual case, appropriate efforts to secure in-country placements in
preference to out of country placements; (4) there is financial
transparency to avoid the illicit use of funds which might create
improper incentives toward intercountry adoption; (5) child study forms
and medical reports concerning children are accurate, reliable, and
reasonably informative, to ensure that children are placed in families
equipped to handle their needs, keeping in mind that not all families
are capable of providing for every kind of special needs child, and that
inappropriate placements can be seriously detrimental both for the child
and the adoptive family; (6) home study reports are accurate, reliable,
and reasonably complete, so that responsible individuals in the country
of origin can accurately assess whether the placement of a particular
child within a particular prospective adoptive family is in the best
interests of the child.

**II INTERCOUNTRY ADOPTION IS NOT A SELF-REGULATING, SELF-CORRECTING
SYTEM**

The Department has sufficient experience in intercountry adoption to
recognize that the current system of intercountry adoption, operating
prior to implementation of the Convention, is neither a self-regulating
nor a self-correcting system. The Department's experiences with adoption
scandals and difficulties, for example in Cambodia, Viet Nam, Guatemala,
Romania, and India, illustrate these difficulties.

Reflection upon these experiences should indicate the reasons that the
intercountry adoption system so often falls far short of the principles
of international and national law outlined above. These reasons would
include the following:

\(1\) **The Large Disparities in Wealth, Culture and Distance between
the United States and Sending Countries Invite Corruption**

Intercountry adoption generally involves interaction between citizens of
rich nations, such as the United States, and citizens of developing or
transition economies. The large disparities in wealth between these
societies, as well as differences between degrees of legal and financial
transparency, invite corruption. The poor within countries of origin may
be so financially desperate, and so culturally and legally powerless, as
to be extremely vulnerable to improper inducements or pressures to
relinquish their children. Wealthier persons within such societies may
often be poor in raw dollar terms relative in U.S. standards, and thus
tempted by relatively small amounts to facilitate illicit adoptions.
Systems of governmental regulation or oversight within some sending
countries may be unreliable, underfunded, or subject to corruption
through bribery or personal connections.

(2) **United States Agencies have Financial and Ideological Incentives
    to Bring Children to the United States, Regardless of Allegations of
    Abuse**

United States agencies involved in intercountry adoption have strong
financial and ideological incentives to keep cases flowing through the
pipeline, regardless of credible allegations of abuses. Financially,
agencies depend on successfully moving children from other countries to
the United States. Ideologically, while agencies typically pay lip
service to the Convention's preferences for maintaining the child in the
country of origin, many well-meaning agency personnel are strongly
committed to the goal of "saving children" through adoption. Thus, from
the agency perspective the goal of correcting abuses, even where
honestly accepted as a positive value, almost always gives way to the
higher value, financially and ideologically, of keeping children moving
through the system. United States adoption agencies therefore typically
do not report their knowledge of irregularities and abuses to the
authorities. Indeed, agencies have been known to employ a variety of
means to prevent adoptive parents from sharing their own knowledge of
improprieties. United States agency personnel are financially or
ideologically motivated to "believe the best," doubt negative reports,
minimize abuses, and keep the system open and running at all costs even
when abuses become apparent.

**(3) Adoptive Parents are Poorly Situated to Discover, Prevent,
Investigate, or Report Abusive Adoption Practices**

Adoptive parents are very poorly situated to police the system of
intercountry adoption. Their primary motivation is to become the parent
of a child. They rely for their information primarily on their US
agencies, who tend to minimize irregularities and shield them from the
actual workings of the system. Their contacts with the foreign country
are often of short duration, and sometimes tightly scripted. Even when
they become aware of irregularities, they easily become embroiled in
efforts to "get their children out" regardless of those irregularities.
Even if they want to share their knowledge of irregularities with
others, they may be subject to threats of libel suits from their agency,
ostracism by the adoption community which views them as a threat to the
continued operation of the system, and contractual gag provisions. Even
if they go so far as to sue their US agencies, they are likely to either
settle the suits, and then become subject to gag agreements as a part of
the settlement, or else lose the suit based on contractual disclaimers
of responsibility for what occurs in foreign countries. Adoptive parents
are understandably fearful of approaching governmental authorities, due
to possible negative affects on their adoptive children or family, or
agency reprisals. (Agencies, it should be recalled, possess ample
private and sensitive information on their clients, which may also make
adoptive parents feel particularly vulnerable.) And in the rare events
where adoptive parents have attempted to approach governmental
authorities, they have often experienced a lack of interest in
investigating and pursuing their cases. Thus, adoptive parents with
significant knowledge of improprieties rarely share them in any way
likely to produce change. Most governmental officials only experience
the involvement of prospective adoptive parents when they seek
governmental help in getting children out of countries of origin and
into the United States.

III. **THE EXPERIENCE OF THE UNITED STATES, AS THE LARGEST RECEIVING
     COUNTRY, INDICATES THAT IT WOULD BE IRRESPONSIBLE TO PRESUME THAT
     SENDING COUNTRIES WILL ALWAYS EFFECTIVELY PREVENT ABUSIVE ADOPTION
     PRACTICES**

The United States government has accumulated extensive experience with
adoption scandals in a variety of countries. The recurrent nature of
these scandals indicates the apparent difficulties some sending
countries have in preventing abusive adoptive practices. These
difficulties go to the heart of the purposes of the Convention and the
IAA, for they involve trafficking in children, improprieties in
relationship to relinquishments, and profiteering in adoption. Adoptive
parents within the United States have systematically experienced
additional harms generally not brought to the attention of the
government, including systematic failures to provide accurate child
study and medical forms. Prospective adoptive parents within sending
countries have experienced other harms also largely invisible to the
United States government, including adoption systems which favor foreign
placements and discourage in-country placements, contrary to
international and local law.

If the United States, as the largest receiving nation, were to implement
the Convention in a manner that systematically immunizes abusive
practices within sending nations from effective review, the Convention
itself would become a useless document that blinks at child trafficking.
It would be irresponsible for the United States, as the largest
receiving nation, to fail to construct a system that guards carefully
against abusive practices both within the United States and also within
sending nations.

IV. **THE PROPOSED REGULATIONS EFFECTIVELY IMMUNIZE ABUSIVE ADOPTION
    PRACTICES WITHIN CONVENTION SENDING COUNTRIES FROM EFFECTIVE REVIEW,
    THEREBY UNDERMINING THE FUNDAMENTAL PURPOSES OF THE CONVENTION AND
    THE IAA**

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A.  **The Proposed Regulations Virtually Immunize Agencies and Persons
    Accredited or Approved by Convention Countries from Oversight or
    Review, Thereby Immunizing Child Trafficking, Coerced
    Relinquishments, and Falsified Child Study Forms from Regulation**

> The preamble to the proposed regulations clearly state the
> responsibilities of sending

countries under the Convention:

The sending country must determine in advance that the child is eligible
to be adopted, that it is in the child's best interests to be adopted
internationally, that the consent of birth parents ... have been
obtained freely and in writing, and that the consent of the child, if
required, has been obtained. The sending country must also prepare a
child background study that includes the medical history of the child as
well as other background information.

Vol. 68 Federal Register pg. 54066.

The proposed regulations pertain to adoptions between Convention
countries. Sending Convention countries will have their own Central
Authority, which presumably will be involved in accrediting or approving
agencies involved in intercountry adoption. Thus, in adoptions subject
to these regulations, the critical tasks of sending country usually will
either be accomplished directly by the sending government, or else by
private entities accredited or approved by the government of the sending
nation.

The proposed regulations provide that US agencies are not responsible
for the acts of private entities that are accredited or approved by
other Convention countries. Similarly, US agencies are not responsible
for the acts of public authorities of other Convention countries. Thus,
the preamble states directly: "these regulations do not make the primary
provider responsible for the acts of these entities for the purposes of
accreditation or approval or legal responsibility to the client." Vol.
68 Federal Register at pg. 54083. The proposed regulations specifically
state that the "primary provider is not required to provide supervision
or assume responsibility for ...Competent authorities and public
authorities of other Convention countries, and entities accredited by
other Convention countries." See section 96.14(d). Nowhere do the
proposed regulations state even a duty of care, by which US agencies are
responsible to exercise due diligence in their selection of partner
agencies in other countries.

The proposed regulations do contain significant obligations by primary
providers when they use "supervised providers in other Convention
countries." See section 96.46. However, one can foresee that these
provisions would be ineffective. Since other Convention countries will
be fulfilling their Convention obligations generally either through
public entities or through private accredited or approved entities, and
since such entities are not "supervised" providers under the proposed
regulations, then there generally would be no occasions in which a US
agency was partnered with a "supervised provider" in another Convention
country for purposes of providing adoption services.. Even if a US
agency had the opportunity to partner with a non-accredited private
"supervised" provider in another Convention country for subsidiary roles
not requiring accreditation, the regulations themselves would dissuade
such use, for the agency could avoid significant liability by partnering
only with public authorities or entities accredited or approved by the
other Convention nation.

The proposed regulation concerning "supervised" providers in other
Convention countries should remain in the final rule, as a disincentive
to continuing the prior US agency practice of contracting with private
non-accredited "facilitators" in sending countries and then disclaiming
responsibility for the acts of such facilitators. It should be
recognized, however, that the implementation of the Convention in
sending countries and the United States will already largely restrict
the role of such non-accredited facilitators, as they should not be able
to provide any adoption services without becoming accredited by the
Central Authority within the sending country. Non-accredited entities or
individuals, whether facilitators or attorneys, would be restricted to
subsidiary roles. While it will be useful to provide for US agency
responsibility for facilitators playing such subsidiary roles, it is
clearly not sufficient to fulfill the purposes of the Convention and the
Act..

Unfortunately, experience in various sending countries indicates that
individuals or entities of dubious ethics may be able to receive
"accreditation" by the central authorities of some sending countries.
For example, since 1990 the Central Adoption Resource Agency (CARA) of
India has accredited all entities with significant roles in intercountry
adoption, yet some notorious individuals/entities credibly accused of
wrongdoing have been able to obtain, renew, or regain accreditation.
Hence, if the new regulations provide that US agencies have no
responsibility for their partner "accredited" entities in sending
countries, one can anticipate that some of the most notoriously
unethical "facilitators" and entities in sending countries will become
accredited and play central roles in sending children to the United
States for adoption.

Thus, where the US is the receiving nation, US agencies under the
proposed regulations generally are neither directly, nor indirectly,
responsible to see that children are not stolen, bought, or trafficked,
that birth parents are not coerced or financially induced to relinquish,
or that child study and medical forms are accurate. Put another way, US
agencies or persons may be fully accredited or approved even if every
single intercountry adoption they process from sending countries
involves stolen, purchased, or trafficked children and grossly
inaccurate child study and medical forms.

Further, the regulations at present provide no complaint or
investigative process for handling allegations of such abusive
practices. The proposed complaint process included in the proposed
regulations requires adoptive parents to initially file complaints
against their primary provider or supervised agencies/persons with such
primary/supervised entities. However, if parents determine that their
adoptive child may have been bought, stolen, trafficked, or improperly
relinquished, or that the child study/medical forms are grossly
inaccurately, such apparently does not constitute a complaint against
any US agency/person, since the US agency/person lacks, under the
regulations, any responsibility for these functions, as well as lacking
any responsibility for how those functions were performed by public,
approved or accredited entities in foreign countries. Indeed, since the
regulations do not state a duty of due care in selection of public or
accredited partner foreign entities, there would be no grounds for
complaint under the regulations even if the US agency knowingly or
negligently worked with public or accredited foreign entities involved
in abusive adoption practices.

Similarly, since these abusive practices are not the responsibility of
accredited or approved US agencies or persons, then presumably it would
not be the responsibility of an accrediting entity to investigate them.

Unfortunately, the regulations perfectly fit the current approach of US
agencies, which is to disclaim responsibility for the acts of their
partner agencies in foreign countries. US agencies would be free, under
the regulations, to continue their practices of minimizing, ignoring,
and failing to report abusive adoption practices by their partner
foreign agencies, while representing themselves to the public as
mainstream agencies deeply concerned with ethical adoption practices.

Thus, the regulations provide no mechanism for reporting the most
serious kinds of abusive adoption practices, no method or plan for their
investigation, and no provision for liability or responsibility.

This writer has personal experience that illustrates precisely how such
a system of US agency irresponsibility functions. For example, when I
complained to the Director of a well-established US placement agency
about grossly inaccurate child study/medical forms, the Director told me
that precisely because the forms stated an untruth, the US agency was
not liable for misinforming the family concerning the condition of the
child. Since the false statements were made in documents created under
the supervision of the partner foreign agencies, the existence of the
false statement in effect immunized the US agency, according to the US
Director's reasoning. The US agency had, according to this reasoning,
satisfied its obligations by presenting a document describing a child in
a certain way, regardless of whether the document was in any way
accurate. Similarly, when I repeatedly complained to a US agency
concerning matters related to questionable relinquishments and
falsification of papers, in the context of major adoption scandals
garnering international attention, the answer was that the US agency had
"done nothing wrong" and was not responsible for those actions taken by
the foreign agencies/persons. This kind of attitude, then, is not
limited at present to a few notorious crooks within the industry, but
represents the well-considered perspective of mainstream agencies
committed to doing adoptions without being responsible for the actions
of their partner agencies in other countries.

**B. The Complete Delegation of Investigative Functions to Private or
State Accrediting Entities Would Prove Inadequate, Even if the
Regulations were Amended to Make US Agencies/Persons Responsible for
Critical Functions Performed Within Sending Countries**

The IAA provisions providing for delegation of certain functions to one
or more accrediting entities are workable to the extent that such
entities are involved in reviewing basic standards related to the
qualifications of personnel, insurance, corporate structure, budget, and
other objective criteria capable of easy examination within the United
States. It is unlikely, however, that any accrediting entity will appear
that is capable of conducting serious investigations within sending
countries related to matters such as child buying and stealing,
trafficking, improper inducements or pressures for relinquishment,
falsification of paperwork, inadequate efforts to place in-country, or
inadequate or falsified child study/medical forms. Such investigations
would require an extensive presence within sending countries, and would
require language and cultural expertise relevant to all of the different
sending countries. It could be diplomatically awkward for private
regulatory entities exercising delegated U.S. governmental authority to
investigate sensitive matters in foreign countries, particularly when
such matters may sometimes involve alleged misconduct by foreign
governmental officials. Thus, even if the regulations were amended to
make US agencies/persons responsible for critical functions performed
within sending countries, the regulations would be ineffective unless
the US government itself performed certain key investigative functions
related to wrongdoing occurring within sending countries. The United
States Governmental alone possesses the presence within sending nations,
access to cultural and language expertise in all sending nations, and
political sensitivity, to navigate these kinds of investigations. United
States governmental responsibilities for immigration and diplomatic
matters provide an existing framework for conducting such
investigations, which could not be effectively delegated to a private or
state-government accrediting entity.

While the language of the IAA delegates to accrediting entities certain
oversight and complaint functions, it does not indicate those functions
to be exclusive. Thus, the regulations could provide for accrediting
entities to have responsibilities for oversight and complaint in certain
areas appropriate to their capacities, while retaining for the US
government investigative functions in other matters. Other provisions of
law relating to immigration, and international obligations relating to
norms against trafficking, already obligate the US government to
investigate claims of irregularities prior to allowing children to be
brought to the United States. Certainly the US government cannot hide
behind the IAA to justify a governmental failure to investigate possible
instances of persons being trafficked into the United States under the
guise of adoption. Thus the regulations, in order to ensure an orderly
and effective adoption system, and be consistent with US and
international law, must provide that certain matters will be regularly
investigated directly by the US government. Further, the regulations
must create a complaint procedure and reporting requirements that bring
these matters to the attention of the relevant authorities within the US
government.

It is likely that the only or primary entities prepared to become
accrediting entities would perform their work according to peer-review
methodologies. Such peer-review methodologies would be adequate to
ensure that certain of the objective standards pertaining to agencies
and persons were met. However, peer review methodologies would not be
adequate to address serious irregularities within sending countries,
because the standards of the US agency on those matters are totally
inadequate. Where the standards of the "peers" are systemically
inadequate, they cannot be reliably improved by peer-review oversight or
regulation.

Unfortunately, the standard of practice within United States placement
agencies demands no investigative or reporting action in response to
credible suspicion that children within the United States were
involuntarily relinquished or trafficked. For example, I have had the
personal experience of informing a US Agency Director, who has been
quite active in a well-respected voluntary accreditation entity, that a
certain child may very well have been involuntarily relinquished, and
almost certainly arrived with falsified paperwork. This individual took
no action, and did not believe that taking any action was necessary,
even though her own US agency had served as the placement agency. There
are in fact numerous adoptive parents within the United States who
struggle with the possibility or even certainty that their adopted
children were bought, stolen, or trafficked, and are offered no help
whatsoever by their US agencies, who seem to consider that the parents
should simply be grateful for receiving the children, whatever the
circumstances. Thus, the typical attitude within the agencies appears to
be that no remedial or investigative action is required in cases of
suspected improper relinquishments, particularly once the child has been
brought to the US. And of course in such cases when the child is still
in the foreign country, the agencies typically work to bring the child
here, arguing that the best interest of the child and the prospective
adoptive parents' interests trump any concerns about trafficking or
illegalities. Allowing "peer-review" methods to govern investigations of
fundamental abuses within sending countries would therefore amount to US
government acquiescence in whatever abuses might occur in sending
countries, including child trafficking and involuntary relinquishments.

**V. THE REGULATIONS SHOULD BE ALTERED TO PROVIDE FOR US AGENCY
RESPONSIBILITY FOR PARTNER FOREIGN AGENCIES, A DUTY OF DUE CARE FOR
SELECTION OF APPROPRIATE FOREIGN PROGRAMS/PARTNERS, A DUTY TO REPORT
REASONABLE SUSPICION OF SERIOUS IRREGULARITIES, DIRECT UNITED STATES
GOVERNMENT INVESTIGATIONS OF IRREGULATIES WITHIN SENDING COUNTRIES, AND
COMPLAINT MECHANISMS ALLOWING DIRECT COMPLAINTS TO THE US GOVERNMENT AND
ACCREDITING ENTITIES**

A.  **The Regulations Should Provide That the Primary Provider is
    Legally Responsible For Improper Actions by Partner Entities
    Operating in Other Convention Countries**

> The proposed regulations should be modified in the following ways to
> provide

that the primary provider is legally responsible for certain improper
actions by partner entities operating in other Convention countries:

\(1\) **Delete** section 96.14(d)(2), currently stating that the primary
provider is not "required to provide supervision or assume
responsibility for \...Competent authorities and public authorities of
other Convention countries, and entities accredited by other Convention
countries."

\(2\) **Add** new provisions, including the following:

**(a) Additions to section 96.2, Definitions:**

"foreign partner provider" means an agency, person, or other
non-governmental entity, accredited or approved by another Convention
country, providing one or more adoption services in a Convention case,
which is working in cooperation with an accredited agency, temporarily
accredited agency, or approved person that is acting as the primary
provider in the case.

"foreign governmental partner provider" means competent authorities or
public authorities of other Convention countries, but excluding courts,
providing one or more adoption services in a Convention case, which is
working in cooperation with an accredited agency, temporarily accredited
agency, or approved person that is acting as the primary provider in the
case.

**(b) Additions: New section 96.14(g)**

The primary provider must adhere to the standards contained in section
\[create new section number\] when working cooperatively with foreign
partner providers on Convention adoptions in other Convention countries.

**(c) Additions: New section creating duties for primary providers
working with foreign partner providers in other convention countries:**

Using foreign partner providers in other Convention countries.

(a) The agency or person, when acting as the primary provider and using
    foreign partner providers to provide adoption services in other
    Convention countries, ensures that each such foreign partner
    provider:

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(1) Does not engage in practices inconsistent with the Convention's
    principles of furthering the best interests of the child and
    preventing the sale, abduction, exploitation, or trafficking of
    children;

(2) Does not have a pattern of licensing suspensions or other sanctions
    and has not lost the right to provide adoption services in any
    jurisdiction for reasons germane to the Convention.

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(b) The agency or person, when acting as the primary provider and using
    foreign partner providers to provide adoption services in other
    Convention countries, ensures that each such foreign partner
    provider operates under a written agreement with the primary
    provider that:

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(1) Clearly identifies the adoption service(s) to be provided by the
    foreign partner provider;

(2) Requires the foreign partner provider, if responsible for obtaining
    medical or social information on the child, to comply with the
    standards in section 96.49(d) through (j);

(3) Requires the foreign partner provider to prohibit child buying by
    any of its employees and agents; to have a written policy
    prohibiting 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, other than reasonable or required
    payments for activities related to the adoption proceedings,
    pre-birth and birth medical costs, the care of the child, or the
    provision of child welfare and child protection services generally;
    and to provide training to its employees and agents on this policy;

(4) Clearly states the compensation arrangement for the services to be
    provided and the fees and expenses to be charged by the foreign
    partner provider, as well as stating any requirements, expectations,
    or customary practices relating to foreign donations;

(5) Specifies whether the foreign partner provider's fees and expenses
    will be billed to and paid by the client(s) directly or billed to
    the client through the primary provider;

(6) Provides that, if billing the client(s) directly for its services,
    the foreign partner provider will give the client(s) an itemized
    bill of all fees and expenses to be paid, with a written explanation
    of how and when such fees and expenses will be refunded if the
    service is not completed, and will return any funds collected to
    which the client(s) may be entitled within thirty days of the
    completion of the delivery of services;

(7) Provides that the primary provider will retain legal responsibility
    for each case in which adoption services are provided, as required
    by paragraphs (c) & (d) of this section;

(8) Requires the foreign partner provider to respond within a reasonable
    period of time to any request for information from the primary
    provider, the Secretary, or the accrediting entity that issued the
    primary provider's accreditation or approval;

(9) Requires the foreign partner provider to provide the primary
    provider on a timely basis any data that is necessary to comply with
    the primary provider's reporting requirements;

> \(10\) Permits suspension or termination of the agreement on
> reasonable notice if the primary provider has grounds to believe that
> the foreign partner provider is not in compliance with the agreement
> or the requirements of this section.

\(c\) The agency or person, when acting as the primary provider and
using foreign partner providers to provide adoption services in other
Convention countries, is responsible:

\(1\) To report directly to the Secretary and the Department of Homeland
Security any specific instances in which there is a reasonable suspicion
of violation of the Convention's principles prohibiting the sale,
abduction, or trafficking of children, the inducement of consents to
adoption by payment or compensation of any kind, the receipt of improper
financial or other gain, or the receipt of remuneration unreasonably
high in relation to services rendered;

\(2\) To exercise due diligence in determining whether to use, or
continue to use, foreign partner providers, and to refuse to use (or
continue to use) such entities where the risks of violations of the
Convention's principles are unreasonably high;

\(3\) To inform prospective adoptive parents in writing of developments
in their adoption process triggering a duty to report under section
(c)(1) above.

\(4\) To provide to prospective adoptive parents, in writing, an
assessment of the likely accuracy, reliability, and thoroughness of
child study and medical reports prepared or supervised by the foreign
partner providers who would be involved in preparing such reports in
their adoption; such assesssment should include any specific information
concerning the foreign partner provider and history of the adoption
system within the sending country that is relevant to the likely
accuracy, reliability, and thoroughness of such reports, rather than
including only standardized language listing flaws possible in all such
reports.

\(5\) To provide to prospective adoptive parents, in writing, an
assessment of the risks of using the foreign partner provider relevant
to their prospective adoption, including risks pertaining to violations
of the fundamental principles of the Convention noted in section (a)(1)
above; such assessment should include any specific information
concerning the foreign partner provider and history of the adoption
system within the sending country that is relevant to the assessment of
those risks, rather than including only standardized language
enumerating risks common to all intercountry adoptions

\(d\) The agency or person, when acting as the primary provider and
using foreign partner providers to provide adoption services in other
Convention countries, does the following in relation to risk management:

(1) Assumes tort, contract, and other civil liability to the prospective
    adoptive parent(s) for (i) the foreign partner provider's provision
    of the contracted adoption services; (ii) for the primary provider's
    failure to fulfill the reporting, due diligence, refusal to use, and
    assessment requirements of section (c), and (iii) compliance by both
    the foreign partner provider and primary provider with the standards
    in this subpart F; and

(2) Maintains a bond, escrow account, or liability insurance in an
    amount sufficient to cover the risks of liability arising from its
    work with foreign partner providers;

**(d) Addition: New section 96.14(h):**

The primary provider must adhere to the standards contained in section
\[new section number\] when working cooperatively with foreign
governmental partner providers on Convention adoptions in other
Convention countries.

**(e) Addition: New section creating duties for primary providers
working with foreign governmental partner providers in other convention
countries:**

Using foreign governmental partner providers in other Convention
countries

\(a\) The agency or person, when acting as the primary provider and
using foreign governmental partner providers to provide adoption
services in other Convention countries, is responsible:

\(1\) To report directly to the Secretary and the Department of Homeland
Security any specific instances in which there is a reasonable suspicion
of violation of the Convention's principles prohibiting the sale,
abduction, or trafficking of children, the inducement of consents to
adoption by payment or compensation of any kind, the receipt of improper
financial or other gain, the receipt of remuneration unreasonably high
in relation to services rendered.

\(2\) To exercise due diligence in determining whether to use, or
continue to use, foreign governmental partner providers, and to refuse
to use (or continue to use) such entities where the risks of violations
of the Convention's principles are unreasonably high;

\(3\) To inform prospective adoptive parents in writing of developments
in their adoption process triggering a duty to report under section
(a)(1) above.

\(4\) To provide to prospective adoptive parents, in writing, an
assessment of the likely accuracy, reliability, and thoroughness of
child study and medical reports prepared or supervised by the foreign
governmental partner providers who would be involved in preparing such
reports in their adoption; such assessment should include any specific
information concerning the foreign governmental partner provider and
history of the adoption system within the sending country that is
relevant to the likely accuracy, reliability, and thoroughness of such
reports, rather than including only standardized language listing flaws
possible to all such reports.

\(5\) To provide to prospective adoptive parents, in writing, an
assessment of the risks of using the foreign governmental partner
provider relevant to their prospective adoption, including risks
pertaining to violations of the fundamental principles of the Convention
noted in section (a)(1) above; such assessment should include any
specific information concerning the foreign governmental partner
provider and history of the adoption system within the sending country
that is relevant to the assessment of these risks, rather than including
only standardized language enumerating risks common to all intercountry
adoptions.

\(b\) The agency or person, when acting as the primary provider and
using foreign governmental partner providers to provide adoption
services in other Convention countries, does the following in relation
to risk management:

\(1\) Assumes tort, contract, and other civil liability to the
prospective adoptive parent(s) for the primary provider's failure to
fulfill the reporting, due diligence, refusal to use, and assessment
requirements of this section; the fulfillment of duties relating to
reporting and/or assessment is not a defense to a failure to fulfill
duties relating to due diligence and a refusal to use.

\(2\) Maintains a bond, escrow account, or liability insurance in an
amount sufficient to cover the risks of liability arising from its work
with foreign supervised providers.

A.  **The regulations should provide for direct United States government
    investigations of irregularities within sending countries, and
    complaint mechanisms allowing direct complaints to the United States
    Government, Complaint Registry, and Accrediting Entities**

As discussed in section (IV)(B) of these comments, effective
implementation of the Convention and the IAA require that the United
States Government directly conduct investigations where there is
reasonable suspicion of abusive adoption practices occurring within
sending countries which could lead to the movement of children to the
United States in violation of Convention standards.

In addition, it is necessary to remove those parts of the proposed
regulations which provide that adoptive parents must initially file
their complaints against agencies, prior to filing complaints with the
US Government, Complaint Registry, or Accrediting Entities.

The stated purposes of the State Department's proposed regulations on
complaints include: (1) reduction of litigation through provision of a
complaint review process; and (2) creation of an appropriate system for
responding to complaints within the framework of the IAA, under which
"the Department for the most part would not directly regulate agencies
or persons." Vol. 68 Federal Register at pg. 54086

The proposed regulations fail to take account of the interests at stake
in intercountry adoption, and hence of the responsibilities of the
United States Government under the Convention. The proposed regulations
treat complaints review principally as a matter of private dispute
resolution, as though the only interests at stake were those of US
adoption agencies and prospective adoptive parents functioning as
private contracting parties.. The Convention, however, is based on the
understanding that intercountry adoption implicates fundamental public
interests which cannot be bargained away by private parties. These
fundamental public interests include the prohibitions of profiteering in
adoption and trafficking in children, the protection of the integrity of
birth families against coerced or induced relinquishment of children,
the best interests of children, and the maintenance of children within
their birth cultures and nations where such is compatible with their
maintenance or placement within a family. Complaints about such matters
cannot be made a matter of private dispute settlement between US
agencies and adoptive parents, for this suggests that so long as these
private parties can come to some settlement over such concerns, no
action is necessary. The public interests at stake, as well as the
private interests of those not represented in such negotiations
(including birth parents, siblings, and extended families), demand that
complaints and reports related to these matters be taken directly to
regulatory authorities.

For example, due to the adoption scandals in Andhra Pradesh, India,
prospective American parents have lost referrals or found themselves in
limbo regarding a referral for several years. Similar problems have
developed due to shut-downs, slow-downs, or scandals in a variety of
nations. Where adoptive parents come to believe that the US agency was
at fault in guiding them into these situations, and brought their
complaint only to the agency, it might well be possible for the agency
to "settle" such a complaint. The agency might refund money, provide a
referral for no additional fee in another location, or otherwise satisfy
the prospective adoptive family. Under the proposed regulations, such a
private settlement might be the end of the matter, even though it
provided no avenue for vindicating the fundamental public interests at
stake. Merely refunding fees or providing another referral does not
clarify whether the agency wrongfully partnered with individuals or
entities in other countries involved in abusive adoption practices, such
as buying babies, inducing or coercing relinquishments, or fabricating
significant documents. Thus, the requirement of bringing complaints
first to the agency could make it significantly less likely that the
fundamental purposes of the Convention and IAA are effectively
implemented.

Similarly, disputes between adoptive parents and agencies regarding fees
might appear initially to only be private matters which should be
subject to a private dispute settlement regimen. However, the question
of appropriate fees has often proven to be closely connected to public
concerns that money not provide improper inducements to relinquish or
supply children, nor provide improper incentives favoring out-of-country
over in-country placements. Thus, even matters that might appear to be
merely private matters between parties can, in the intercountry adoption
context, implicate the fundamental public purposes at stake.

Therefore, the following alterations in the proposed regulations should
be made:

\(1\) **Add** new section clarifying that the United States Government
has a non-delegable responsibility to investigation, in cases involving
possible movement of children into the United States for purposes of
adoption, the following acts:

\(a\) Acts within sending countries contrary to the fundamental purposes
of the Convention and the IAA, including the Convention's purposes in
preventing

\(i\) the abduction, sale of, or traffic in children,

\(ii\) involuntary, coerced or induced relinquishments, or

\(iii\) the intentional or negligent creation of misleading or seriously
inaccurate child study/medical reports .

\(b\) Acts, either in the United States or other nations, which violate
United States immigration laws;

\(c\) Acts, either in the United States or other nations, which violate
binding international and/or national norms against trafficking in
persons.

\(2\) **Amend** 96.69 to remove mandatory requirement that complaints
against accredited agencies and approved persons first be filed with
primary provider and agency/person providing adoption services, prior to
being filed with either the Complaint Registry, accrediting entity, or
the US Government. The complaint resolution system created in the
proposed rule could be amended to provide a permissible, but not
mandatory, system of dispute resolution.

**VI. CONCLUSION**

The proposed rule in its current form represents great effort to little
purpose. The proposed rule attempts to regulate "on the cheap" by
removing Department responsibility for most regulatory functions, and
removing Department, accrediting entity, and US agency responsibility
for ensuring that children brought to the United States for adoption
have not been illegally taken from their birth family and nation. If the
United States, as the largest receiving nation, takes this lax approach
to implementation of the Convention, it will render the Convention and
the Act as largely rhetorical and empty gestures.

The Department already is deeply familiar with the failure of the
intercountry adoption system to be self-regulating, and with the
interests and ideologies of the participants which allow abusive
practices to continue in cyclic patterns of scandal and abuse. There is
a better way. The Department can fashion a rule which responsibly builds
clear accountability into the system, and thus appreciably reduces
abusive adoption practices. The United States can demand that the
children brought here for adoption not be bought and trafficked like
cattle. The United States Government can clearly reject US agency
practices which wink at abusive adoptive practices by overseas partners.
Only when the system of intercountry adoption is an accountable,
dependable system, will it be a system safe for the children, birth
families, and adoptive families impacted so profoundly by adoption.