U.S. Department of State

CA/OCS/PRI

Adoption Regulations Docket Room

SA-29

2201 C Street NW.

Washington, D.C. 20530

Re: Comments on Proposed Inter-Country Adoption Act of 2000 Regulations

Docket Number State/AR-0a/96

Dear Sir or Madam,

Under separate cover, others will comment the specifics of the
regulations as

proposed. This document is intended to address several overarching
themes and

concerns regarding implementation of the Intercountry Adoption Act.

Introduction

It has been nearly ten years since the United States signed the Hague

Convention on Intercountry Adoption. It has been nearly six years since
the

White House transmitted the treaty to the Senate for ratification. It
has

been nearly four years since the Senate ratified the treaty and the
enabling

legislation was signed into law. It has been three years since the State

Department held a series of public informational meetings to elicit
additional

information about international adoption. Yet despite nearly a decade of

discussion, debate, Congressional hearings, legislation, meetings and a
myriad

of detailed comments, the State Department seems to have no grasp of
adoption

practice or business issues. The proposed regulations certainly
demonstrate

the Department's lack of insight into the actual economics of
international

adoption or how the abuses which led to passage of the Intercountry
Adoption

might be tempered or eliminated. Ultimately, the proposed regulations do
a

disservice to both industry and consumers and perhaps even fail in many

respects to harmonize the mandates of the treaty with federal law.

The focus of the proposed regulations is fundamentally misguided. The

regulations as constructed effectively create a new business enterprise
rather

than focusing on the reform or elimination of bad practices which would
result

in more effective protections for both business and consumer interests.
The

regulations appear to create a new arena - parallel to the business of

adoption - which will be responsible for accreditation, oversight and
elements

of enforcement. Unfortunately, this new industry is entirely undefined
in a

document filled with broad statements and little detail. The only clear

agenda in the regulations seems to be the creation of multiple private

entities discharging governmental responsibilities in a way that will
only

lead to more confusion in a field desperately in need of more
transparency.

The structures outlined for the accreditation process will create
fundamental

conflicts of interest in the relationship between the accreditor and
those

agencies being accredited. This is exactly the scenario that Congress
sought

to eliminate when they passed the Intercountry Adoption Act. The
proposed

regulations, as they define the accrediting process, create new
conflicts of

interest.

It must also be said that the overarching tone of the regulations - with
their

repeated references to concerns about the impact the regulations will
have on

industry, especially small providers - is deeply disturbing. There are
many

fine service providers in the field. However, even the best providers
have

been subjected to a lack of leadership on the part of the State
Department.

Additionally, by virtue of the lack of regulation of the business of
adoption,

high quality, experienced providers are painted with the same brush as
bad

actors. The State Department is not a business development arm of the

adoption industry. Good providers will accept, even welcome, the
challenge

of greater transparency. Those that do not should leave the field.

Accreditation

With respect to proposed accreditation the apparent lack of insight and

preparation on the part of the Department is deeply troubling.
Statements such

as "the need to find competent and willing accreditation entities . . .
the

Department did not want to create inflexible regulations that would
discourage

any accrediting entity from seeking designation . . . " betray a
complete

failure on the part of the Department to even contemplate the necessary

capacity building to meet the new mandates despite nearly a decade of

discussion. The State Department has had ten years to create its own

accrediting function or, at a minimum, determine appropriate models and

standards, as well as to cultivate and certify qualified accreditors
from the

private sector. The fact that, after a decade of deliberations, the
State

Department feels it has to lower standards and carelessly shift
responsibility

to unnamed outside groups - who many themselves lack international
adoption

experience - is deeply troubling.

The Department appears to have ignored input from a variety of sources

regarding the accreditation model it seeks to promote. The Department
has

been cautioned repeatedly during this process that current social
service

accreditation models will not provide quality control necessary to root
out

existing abuses and to implement the Treaty. The vague proposals put
forth

here bespeak either a failure to grasp operational issues and/or
complete

abdication of responsibility. Furthermore, with no identification of who

accreditors will be - or even could be - it is impossible to endorse or
even

intelligently comment on proposals. There appears to be little or no
thought

given to how to avoid conflicts of interest. State seems intent on
ensuring

accreditation for every provider currently in the adoption business. The

accreditation process is not an entitlement. Indeed, not all providers
should

be accredited. But more important, the State Department is a law
enforcement

agency not a trade association. In this case, accreditation is not

voluntary. The Department should raise, not lower, standards for entry
into

the business. The standards that are established need to be clearly
defined

and articulated. The proposed regulations do not achieve that goal.

Ultimately, the accreditation process as proposed does no favors to
either

business interests or consumers. Who are the accreditors? How much will
it

accreditation cost? How long will it take? How can consumers know if an

agency has been denied accreditation? None of these questions are
answered -

either for the industry or consumers. By shifting responsibility for

accreditation to an unknown private entity or entities who are likely to
have

significant industry ties the possibility of inappropriate manipulation
of the

accreditation process to create unfair competitive advantages is
virtually

certain

While the identities of prospective accreditors is largely unknown, it
has

been reported that some states are seeking to become accrediting
entities.

Under no circumstances should any public entity be permitted to become
an

accreditor. The Intercountry Adoption Act was enacted at least in part
as a

result of the states' inability to effectively regulate adoption. Also,
the

sovereign immunity granted to states creates a conflict of interest in
this

context. Even if states waived their right to immunity, it is unlikely
that

consumers would be on a level playing field with respect to due process.

Liability Insurance Requirements

One positive aspect of the proposed regulations is the requirement that

adoption agencies and their contractors, foreign and domestic, hold
liability

insurance as one means of protecting the interests of their clients. It

should be noted that, while numerous industry interests have attempted
to

persuade the State Department that no such coverage exists, coverage is

readily available to qualified agencies. For more information about
liability

insurance for social service and adoption providers contact: The
Lexington

Group, 100 Summer Street, Boston, MA 02110, 617.330.8400. They provide

policies compliant with the proposed regulations. Their products are

similarly available through their parent company, the American
International

Group, to cover activities carried out by foreign agents and employees
of

service providers in all of the jurisdictions currently sending children
to

the United States for adoption. The estimated cost of these
comprehensive

policies may be as low as \$300 per adoption, a cost most consumers
would

happily assume.

Cash Payments

On the issue of fee policies and procedures the proposed regulations
appear to

virtually ratify existing abuses. First, direct cash payments should be

prohibited, not "minimized." While it may be that currency is required,

those payments should be facilitated by service providers via wire
transfers,

a common practice in most countries where international adoption is
practiced.

At a time when law enforcement officers in the US and around the world
are

attempting to limit cash transactions supporting international
terrorism, it

is astonishing that the State Department would take the position that
any cash

payments would be acceptable. In our experience, the actual fees charged
by

foreign central authorities are far less than characterized by some
providers

and their agents.

The claim made in the regulations that the majority of expenses in an

international adoption relate to the fees charged by foreign governments
is

inaccurate. Such a claim in this context raises the issue noted earlier
that,

given all of the time, effort, and money spent on developing these
regulations

the State Department still has no grasp of the fundamental realities of
the

cost structure of international adoption. There is no reasonable excuse
for

this.

Records Retention

The regulations proposed to address records maintenance are troubling.
It is

seems odd that anyone would question how records will be maintained or
by

whom. Anyone who has been to the National Archives knows the answer to
that

question. The US government has been maintaining copious records - both

important and trivial - since the birth of the nation. Any and all
records

associated with this practice should be maintained in perpetuity. We can

point to the recent example of an 84-year old retired business executive
in

Massachusetts who gained access to his original birth records after a
lengthy

search to demonstrate that a 75-year window of records retention is not
long

enough, especially at a time when life expectancies are longer than
ever.

Common practice in many states is that adoption records be kept in
perpetuity.

These records have implications not just for the individuals who were

adopted, but for their future children and the relatives among future

generations of birth and adoptive families. Under no circumstances
should any

of these records be maintained by a private or state entity.

Oversight and Enforcement

The oversight scheme in the proposed regulations is inadequate and
riddled

with the potential for conflicts of interest. Since the State Department

appears to lack both the expertise and the interest to impose meaningful

oversight of adoption providers, we are requesting that the entire
oversight

function required by the Inter-Country Adoption Act be shifted to the
Federal

Trade Commission. An interagency agreement executed by the federal
government

is vastly preferable to a nebulous, private system with little or no

enforcement authority and inadequate sunshine in government.

Cost shifting to states, providers and consumers

A particularly troubling comment in the proposed regulations . . . "Some

groups called for extensive Federal\[sic\] regulation of agencies and
persons

without acknowledging the costs such standards would entail." It is

patently untrue to assert that no thought was given to this important
aspect

of implementation. Outside groups wrestled with the perennial problem of

ensuring adequate authorization and appropriations for spending to
offset the

costs associated with creating new Executive branch responsibilities.

Unfortunately, the Department appears to have persistently failed to
address

any cost issues related to this practice - whether administrative or

commercial - in the nearly ten years it has contemplated implementation
of the

treaty.

There are hundreds of precedents for significant appropriations being
secured

by other agencies facing added enforcement responsibilities. Indeed,
there

are a myriad of precedents for the Administration, in general, and the

Department, in particular, obtaining sums of money from Congress to
implement

a variety of programs contemplated over a much shorter period of time
than

this issue has been considered. By failing to adequately address its own

capacity building in an effort to create the impression of budget
neutrality,

the Agency has effectively shifted those costs to states, service
providers

and consumers.

Money has already become the principal barrier to adoption. And,
adoption is

already prohibitively expensive for many families in no small part
because of

the failure of the states and federal government to adequately regulate

business practices. Costs are further escalated by the entry into the
field

of providers with poor business practices and inadequate fund-raising
skills.

How ironic if an exercise intended to reign in costs actually escalated
them

significantly.

Exportation of American Children

While one recognizes that the treaty requires receiving countries to be

sending countries it does not stipulate under what conditions that
reciprocity

should take place. The reality is that, with literally millions of
American

families desperately seeking to adopt, there are virtually no
circumstances

under which American children should be deported to other countries for

adoption. Also, current practice actually permits the sending of
American

children abroad for adoption despite a nearly complete inability to
supervise

those placements or achieve meaningful legal recourse in those cases
when the

adoption goes wrong. In an age where human trafficking is rampant the
federal

government should aggressively protect the interests of American
children. In

the interests of protecting the human rights of the children involved
and to

encourage more families in this country to adopt, this is a practice
that

should be sharply limited. Indeed, current practice should be suspended
until

the Hague Convention is effectively implemented in this country and
safeguards

can be put in place to protect the interests of all parties.

MSW Requirement

While it is admirable to attempt to require some level of professional

accomplishment to ensure best practice, there is copious evidence to

demonstrate those simply requiring M.S.W. degrees for professionals is
not a

meaningful response. Regardless of professional degree, in the case of

international adoption, a minimum of five years of international
adoption

experience should be required. There are many precedents for such a

requirement in other professions. Some country specific training should
also

be required.

States' Rights

The proposed regulations repeatedly refer to states' rights in an effort
to

maintain the current model of state-based regulation of adoption. This

premise is wrong for two reasons.

First, Congress has demonstrated repeatedly in recent years that they
have

little confidence in the ability of the states to promote adoption
effectively

or responsibly. From the passage of the Adoption and Safe Families Act
of

1997 to the Intercountry Adoption Act which the proposed regulations
seek to

implement, Congress has repeatedly and vociferously sent an unambiguous

message that the states can no longer be trusted to administer their
adoption

programs without federal oversight. The federal government further
regulates

human trafficking in other contexts.

Second, all international adoption is inherently interstate commerce.

Children are adopted from around the world by American families from a
variety

of foreign countries, each with a unique legal, cultural and
geopolitical

framework. It is preposterous to suggest that the policies of the
foreign

government granting the adoption should be overridden by state law.
Indeed,

if it is true on any level that adoption is a state law issue and we

shouldn't tell the states what to do, one could argue that no state
should

be permitted to dictate the foreign policy of another country. The

persistent efforts on the parts of the drafters of this document to
promote a

states' rights argument flies in the face of Congressional intent. The
very

premise of the Intercountry Adoption Act was to ensure federal
regulation of

intercountry adoption.

Conclusion

Around the world, thousands of children are desperately in need of
families.

Around the United States there are hundreds of excellent adoption
providers

seeking to match those children with the thousands of well qualified
families

in this country seeking to adopt. The fundamental purpose of the
Intercountry

Adoption Act was to provide a simple, clearly articulated business model
for

intercountry adoption that would limit abuses and make it easier to
everyone

to participate in this important component of international child
welfare.

Unfortunately, the scheme the Department has developed will almost
certainly

penalize everyone seeking to engage in the process. It will further

compromise efforts to create more, not less, transparency.

The proposed regulations create unfunded mandates for states already
burdened

with significant foster care adoption responsibilities. They create a

constellation of confusing, meaningless regulatory requirements that
will not

add value to the process for either business or consumer interests. They
will

penalize good providers while creating a haven for less good ones. And
the

ultimate losers in this proposal will be the tens of thousands of
children who

will continue to languish around the world while the Department
struggles

unsuccessfully to meet its obligations in this process.

While we do not wish to extend an undertaking that has already taken far
too

long, it is imperative that both Congress engage in oversight of this
process

and that the Executive branch consider the fundamental flaws in the

implementation of the Intercountry Adoption Act. The risk of temporarily

reducing the numbers of adoptions from foreign countries while
implementing a

system to ensure better protections and outcomes is one that only a

governmental authority can reasonably accomplish. In the long run, this

benefits everyone.

Sincerely,

Maureen Flatley Hogan

Maureen Flatley Hogan

7 Winthrop Street

Essex, MA 01929

Phone: 978.768.3694

Fax: 978.768.6570

Cell: 978.314.0766