TODD & WELD LLP

ATTORNEYS AT LAW

28 STATE STREET

BOSTON, MASSACHUSETTS 02109

HOWARD M. COOPER

Email: hcooper@toddweld.com

TELEPHONE: (617) 720-2626

FACSIMILE: (617) 227-5777

[www.toddweld.com](http://www.toddweld.com/)

# October 31, 2003 

Via E-mail- [adoptionregs@state.gov and First Class Mail]{.underline}

U.S. Department of State CA/OCS/PRI

Adoption Regulations Docket Room SA-29

2201 C Street, NW

Washington, DC 20520

RE: Docket Number State/AR-OI/96

Proposed Amendments to the Hague Convention:

Subpart F, page 54100, 96.33(h) - Financial and Risk Management

Subpart F, page 54102, 96.39(d) - Blanket Waivers of Liability

Subpart F, pages 54105 and 54106 - Using Supervised Providers in the
United States and in other Convention Countries

Dear Sir/Madam:

I write respectfully in vigorous opposition to the above proposed
amendments to the Hague Convention. As discussed below, both separately
and in combination, it is difficult to conceive of a set of proposed
regulations which would more undermine the well-established goals of
international adoption (i.e., uniting children born in foreign countries
into difficult and often dangerous circumstances with adults living in
other countries who desire and are prepared to parent them).

By way of background, I am the father of a 20 month old little girl
adopted from Colombia. My family has been through the international
adoption process. I spent nearly 5 weeks last year in Bogotá, Colombia
navigating, with the assistance of an international adoption agency, a
difficult foreign bureaucracy in order to bring my daughter home. I am
also a trial lawyer who has represented international adoption agencies
in \"wrongful adoption\" cases. I am the author of an article which
appeared in the Boston Bar Journal (May/June 2000 edition) entitled
\"Enforcement of Contractual Release and Hold Harmless Language in
\'Wrongful Adoption\' Cases.\" (I enclose a copy of the article). I am
also Chairman of the Board of the Alliance for Children Foundation,
Inc., a Wellesley, Massachusetts based non-profit Foundation which
raises money to support children living in orphanages in foreign
countries and,

U.S. Department of State

October 31, 2003 Page 2

importantly, the many children who are left behind because there are no
prospective adoptive parents interested in adopting them.

Let me address the above proposed amendments in order.

The proposal to require adoption agencies to maintain a minimum of \$1
million in liability insurance is unrealistic and misdirected. It is
already extremely difficult for agencies even to get insurance. I am
aware of only two insurers who are willing to write this risk. Once an
agency has received a claim, they typically are cancelled for the
following year. Even when insurance can be obtained, the cost is
exorbitant. I am aware of an agency which pays over \$65,000 per year
for \$1 million worth of coverage. To the extent this cost can be passed
on to prospective adoptive parents in an agency doing, for example, 200
adoptions a year, this adds an average additional cost to an adoption of
\$325. This is a substantial increase in fees which negatively impacts
upon the number of people able to adopt and, in turn, the number of
children who will be adopted.

Most agencies are non-profit entities. Accordingly, the requirement that
they absorb the cost of mandated insurance impacts their ability to
perform their charitable purpose, not their profits. Indeed, to
encourage adoptions many agencies already utilize a sliding scale of
fees pursuant to which lower income couples can pay less for an
adoption. The agencies ability to do this will be directly impacted by
the requirement of maintaining \$1 million in insurance coverage. It is
difficult to conceive why the State Department would be in favor of
imposing such a prohibitive administrative cost on a non-profit entity
engaged in a charitable undertaking.

The proposal to prohibit contractual assignment of risk agreements too
is misplaced and, frankly, ill conceived from a public policy
perspective. As a threshold matter, courts considering such agreements
have explicitly upheld the public policy of allowing agencies engaged in
the difficult work of international adoption to educate their clients to
the well-established risks and asking them to acknowledge and accept
that risk. In Forbes v. Alliance for Children, a Massachusetts Superior
Court decision upholding a risk acknowledgment and waiver agreement, the
Court explicitly recognized that there are risks inherent in adopting a
child from another country, especially the unknown and unknowable
medical risks at issue in that case, and that without such agreements
the important work of international adoption agencies could not go
forward. I enclose a copy of the decision.

As the parent of both an adopted child and a biological child it is
difficult to understand why someone who wants to adopt a child from
another country is entitled to a de facto guarantee that the child will
be physically and emotionally healthy where no such guarantee exists
with regard to biological children. This would be the net effect of
barring assignment of risk agreements.

Keep in mind that no contractual waiver agreement is ever enforceable in
instances of fraud or bad faith. As a result, the amendment can only be
viewed as being directed at barring an agency from protecting itself
against unintentional mistakes regarding issues which might very

U.S. Department of State

October 31, 2003 Page 3

well be inherently unknowable. For example, agencies typically advise
prospective adoptive parents that children living in orphanages may be
delayed developmentally due to a lack of stimulation. Such delays can
mask a variety of conditions. Children available for adoption literally
may have been left at an orphanage with no medical information about
them or their biological parents. There may be no ability to evaluate a
child in an orphanage before an adoption given the lack of a modern
medical system in the host country or local bureaucracy. These are just
examples. The point is that prospective adoptive parents can be (and
typically are) educated to these risks and go forward knowing and
accepting them, just like parents who decide to go forward with a high
risk birth are made aware of the inherent risks and potential
consequences in doing so. Indeed, by analogy, the proposed amendment is
the equivalent of barring a physician who is asked to deliver a baby in
a high risk delivery where both mother and baby could die, from asking
the parents to sign an informed consent form. I am aware of no legal
precedent for such a prohibition and I suspect that such a bar would not
survive legal challenge.

Finally, the proposal to make domestic agencies liable, apparently
strictly and vicariously, for the acts of those individuals helping them
overseas is also unrealistic and of doubtful legal enforceability.
Traditional and accepted notions of vicarious tort liability in this
country are predicated upon fault and the control or right to control
the actions of another. Thus, an employer in many circumstances can be
held liable for the acts or omissions of an employee under the
employer\'s control. Here, however, the proposed amendment would hold
domestic international adoption agencies responsible for the acts of
persons overseas that they often have no control over at all, who act
independently, and who are subject to different oversight, rules and
regulations in the host country.

Keeping in mind that existing concepts of liability already subject
domestic agencies to liability for the malfeasance of those overseas
individuals who they do in fact control or have the right to control,
the proposed amendment would render the agency liable for any negligent
act done by anyone under any circumstances involved in a particular
adoption so long as the agency was working with them in some capacity.
So, for example, an error made by a pediatrician who regularly attends
to orphanage children by mandate of some rule or regulation in the host
country, and who the agency did not choose but must deal with, becomes,
potentially, the liability of the domestic Unites States agency. This is
true despite the fact that the alleged act or omission occurred in a
foreign country and the agency had no control over the quality of the
care given or an ability to insist upon a different pediatrician.
Putting aside the jurisdictional unfairness inherent in such a
situation, and putting aside the likely unwillingness of an insurer even
to insure against acts or omissions of a non-employee, the imposition of
this type of liability is unheard of in our system to my knowledge.

In combination, the above proposals, I am confident, will simply put
most agencies out of business. Agencies subject to strict, vicarious
liability for the actions of persons they cannot control, unable to
insure against the risks, and unable to ask prospective adoptive parents
to accept the risk, will not continue to operate. As agencies close
down, children will be left abandoned in orphanages.

U.S. Department of State

October 31, 2003 Page 4

I do not think there is any way to overstate the dramatic and negative
impact the proposed amendments will have on children living in
orphanages. When I think about my own experience as an adoptive father,
I am deeply saddened to think regulations which are no doubt well
intentioned, will actually destroy the very system they are hoping to
protect.

Thank you for your consideration.

Very truly yours,

Howard M. Cooper

HMC:cas

Please see the corresponding PDF file for the following supporting
materials included with this comment:

Cooper, Howard M., "Enforcement of Contractual Release and Hold Harmless
Language in 'Wrongful Adoption' Cases," [Boston Bar
Journal]{.underline}, May/June 2000.

Forbes vs. Alliance for Children, Massachusetts Superior Court.