###### Comments on the Proposed Regulations to the Hague Intercountry Adoption Act

Submitted by:

Barbara J McArtney

Attorney at Law

4983 East River Road

###### Grand Island, New York 14072 

716 775 6715

**Table of Contents**

**Page Subject**

2 INTRODUCTION/OVERVIEW

5.  Personal Experience of Corruption in Adoption

6.  **Hague is a Response to Corruption**

**7 The US Government recognizes corruption is ongoing in adoptions**

###### 7 Laws Already Prohibit Corruption in International Transactions

###### 9 US Policy 

11 Hague Regulations are Agency Oriented

###### 11 Maintaining the Status Quo is not the Purpose of Hague 

## 11 Independent Adoptions Must be Protected 

11 The Role of the Central Authority

####### 12 Fees

#######  Parents' Interests are not Protected by the Regulations

######  Beyond Hague

16 Accreditors Must be Objective

###### 17 The Strongest Solution is Assuring Equal Consideration to all Applicants

**20 Summary of Proposed Changes to the Regulations**

Equal Protection and Due Process

Parent representation

Arbitration

Accreditor Objectivity

Humanitarian Aid Office

Human Rights

**23 Appendix A**

####### 24 Appendix B

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###### 

###### 

###### 

###### 

###### INTRODUCTION/OVERVIEW

The US International Adoption system is broken. Abuses are rampant,
already high fees are escalating and corruption is commonplace. In
recent years many sending countries have closed due to disclosure of
baby selling and abuses of the process. Many more are likely to close if
their equally corrupt processes are exposed. Hague contains much needed
consumer protection. It offers a federal framework and unity of law for
the state licensed agencies. But it has missed its mark on the core
purpose of Hague -- elimination of corruption in the foreign process and
protection of basic human rights of children.

The process of Hague implementation has been driven by agency advisors,
agency concerns and protection of agency rights.\* The whole issue of
assuring "the best interests of the child" has been approached
backwards - from the agency viewpoint- not the child's. All efforts have
been limited to creation of a system that preserves the status quo of
the existing agency system.

This is the same system that brought us the scandals in Cambodia,
Romania, Vietnam, Guatemala and Georgia.

The proposed Hague regulations create a complex tiered system of
reporting, authorization and administrative responsibility for adoption
agencies. They mistakenly substitute bureaucratic licensing procedures
in the US for necessary legal enforcement of adoption procedures in
foreign countries.

Reform is badly needed in the structure, accountability and focus of the
Department of State (hereinafter "DOS") itself as Central Authority.
Delegation of their authority to accreditors will only exacerbate the
lack of communication and responsiveness of DOS to their true
constituency- parents and children. Parents have been denied due process
and equal protection by foreign adoption processes approved by DOS.
These processes purposely assign children by arbitrary procedures
because of corruption. Relinquishments are secured under questionable
circumstances that benefit those that identify and place the children.
Children have been denied fundamental human rights protections as they
are treated like inventory brokered to the highest bidder.

In Georgia, Romania, Guatemala, Cambodia and Vietnam, the Embassies, DOS
and agencies all had knowledge of the ongoing corruption but chose to
ignore it so long as it remained below the radar of the public eye.
Corruption of the adoption process is not unique to the countries where
these scandals and suspensions have occurred. It goes on in most sending
countries presently and will undoubtedly result in future closures
unless the issue of corruption at the point of origin is addressed.

The Hague Treaty, Legislation and Regulations purport to do so. But laws
and agreements that merely state they outlaw corruption don't stop
corruption. There are many laws, treaties and regulations already in
force that forbid corrupt activity in adoptions. They have had little to
no effect on the rampant abuse because foreign corruption in adoption is
neither investigated nor deterred. Attempts to seek redress or
enforcement of those laws encounter insurmountable resistance. As
drafted, the regulations will provide only additional un-enforced rules.

The DOS international adoptions brochure states "the Department of State
consistently takes a strong stand against fraudulent adoption
procedures. This policy flows from our general obligation to respect
host country laws, to discourage any illegal activities and to avoid the
possibility that a country may prohibit international adoptions
entirely." DOS states that the Embassies will "Ensure that U.S. citizens
are not discriminated against by foreign authorities or courts."

Secretary Powell has stated "The fight against corruption is a high
priority in U.S. foreign policy."

The public declarations stand in sharp contrast to what the DOS and
Embassies say privately and do about adoption corruption. Embassy
officials state they have no control over foreign adoption procedures.
They say they can only engage in diplomatic support of positive change
and promotion of a transparent process. BCIS has the authority to deny a
visa if the process is found to be fraudulent. But they intervene only
in the most flagrant cases of kidnapping or wholesale baby brokering and
when it is complained of in a public forum. Then the reaction is denial
of the visa, or complete moratorium, not correction of the corruption or
improvement of the process. The Embassies cannot counter corruption
without clear, simple, measurable and enforceable guidelines on
acceptable adoption practices with financial guidelines and absolute
mandates for fair non-discriminatory treatment and limits on provider's
power and discretion.

Agencies jealously guard their facilitator information and the means by
which they obtain their desirable, "in demand" referrals. Referrals and
assignments of children are governed by private "connections" and "
inside government relationships" (in countries where a central authority
makes placements), not legal process. Agencies can obtain healthy young
babies quickly for their clients if they have these unofficial
understandings. In the countries where agencies deal directly with
independent directors or children's homes, relationships are established
based on which agencies offer them the best deal for their children.
Most parents know and consular officers concede that corrupt officials
on various levels often require illegal payments for adoptions to
succeed. This is despite foreign laws and procedures whereby applicants
supposedly receive referrals according to application date or other
objective legal criteria. Private deals stuck between direct providers
of children such as directors and agencies are just that -- Private and
not subject to scrutiny by Embassy or other US officials.

Complaints to US and foreign authorities fall on deaf ears. Legal
procedures do not exist for parents or their representatives to demand
their rights in foreign adoptions under US law. Attempting to demand
justice from a foreign government is an unpredictable, time consuming,
expensive and frustrating endeavor. Corruption extends to courts, heads
of departments, oversight committees and executives branch members.
Agencies are not required to disclose just how they are able to receive
preferential treatment or how they gain access to adoptable children so
successfully. The DOS states it can't control foreign corrupt adoption
practices. And for whatever reason, it does not attempt to control
agency participation in that corruption.

All this occurs in the context of a large "foreign fee" generally over
\$10,000, disappearing into a black hole abroad with no breakdown of its
disbursal. The proposed regulations will continue this practice. No
breakdown is proposed, nor is there any defining criteria determining
what constitutes "reasonable" payment for services. The suggestion that
non-governmental accreditors can combat corruption in a third world
sending nation is wishful thinking.

A behemoth regulatory system with accreditors reviewing written
policies, records, complaints and procedures on US soil can not possibly
have much of an impact on the issues of foreign corruption and
trafficking. The practices and policies that gave rise to the scandals
that resulted in shut downs would remain unaffected under the proposed
Hague implementation. So long as money flows unaccounted for abroad and
preferential treatment and discriminatory practices are tolerated under
US oversight, Hague will change nothing.

Referrals obtained through improper influence and "connections" must be
expressly prohibited. The DOS must require that the referral process of
children be based on fair, legal, objective criteria and then monitor to
insure that this takes place. If all applicants are given equal
consideration, there will be no incentive to make improper payments to
get what is lawfully available. Under the concept of Hague, no adoption
should be permitted to be "private" in so far as no private financial
deals should enable a parent to "buy" a better adoption direct through
an attorney or birthparent that can circumvent equal treatment or due
process. More money should not equal a better baby. Regulations must
include that any evidence of disparate treatment or fee structure
inconsistent with country guidelines will be considered unacceptable. It
must constitute a violation of law for an agency, facilitators or
representative of an applicant to seek or accept improper favorable
treatment. If the federal government is going to take on responsibility
for oversight of a federal process, constitutional principles of equal
protection and due process must be adhered to. If the only way this can
be done is by restricting agency practices to insure fairness, then that
is what DOS must do. This will not be a popular decision with the US
agencies who benefit from foreign corruption, but the DOS must act
consistent with its legal obligations, not appease special interests.

Accreditors must not be related in any way to any existing adoption
providers. They must be totally objective and free of conflicts of
interest.

Much needed is parental input, communication and recourse. Parents need
viable procedures for them to solve problems and make complaints, not
merely an administrative scheme that punishes agencies. We need
practical cost effective methods to resolve disputes such as mediation
and arbitration. Parents must be given a formal voice in the Hague
regulatory scheme.

The adoption community needs to make more of an effort to coordinate and
enhance opportunities for humanitarian aid development. We need to
leverage existing resources and work toward long term goals of education
and prevention of the cycle of poverty that creates future generations
of orphans.

We need to enter into a cooperative dialogue with the human rights
organizations that are critics of international adoptions to find mutual
solutions to our common problems. With improved communication and
acknowledgement of problems, we can reach a consensus that protects
children's rights while still supporting international adoptions.

The regulations are strangely silent on the duties and obligations of
the Central Authority itself. If Hague is to be successful, the DOS must
fully accept its responsibility to prevent child buying and profiteering
by unscrupulous providers. DOS must not see foreign corruption as an
issue outside its control. Though it cannot control foreign procedures,
it can reign in agency participation in corruption. There must be
detailed regulatory guidelines that will indicate when and how DOS will
act to carry out its duties not just oversee an accreditation scheme or
engage in diplomatic communication without defined mandates. Finally, we
need a proactive not reactive Central Authority that embraces its
primary responsibilities to children and parents, not adoption
providers. The DOS must live up to its expectations for other countries
and be "transparent" itself in its dealings with parents and operation
in connection with adoptions under Hague.

\* the term "agency" herein will refer to both agencies and "persons" as
defined under Hague.

Personal Experience of Corruption in Adoption

I write these comments on behalf of parents and children but my
knowledge and opinions come from first hand professional experience as
an adoption attorney and a licensed adoption provider.

I have been an attorney for 20 years and am a parent of seven including
two internationally adopted. I am also an adoptee. My interest in this
field of practice is more than professional. I believe that the
international adoption industry is out of control and requires a
different approach. My goal was to run ethical, cost effective
professional adoption programs with emphasis on humanitarian aid. I
partnered with foreign Bar Associations to increase accountability and
leverage their already existing infrastructure. (Appendix A) I hoped
with strong partners committed to children's rights and ethical
practice, we could avoid corruption and successfully help parents adopt
a better way. The project failed in five countries; thoroughly defeated
by corruption in four. ( Appendix B) I am trying to complete my last few
adoptions and closing the project but am having substantial problems
even doing that as of the time of this paper's submission.

What I have discovered as an "insider" has been quite revealing.
Corruption is far more pervasive than I expected. In one country after
another I encountered problems that repeatedly left me with the choice
of engaging in unethical or illegal activities in order to conduct
adoptions or withdraw from a country or region altogether. This was not
because the project wasn't financially viable or because of other
practical obstacles. I was unable to assist my clients to adopt without
engaging in illegal or unethical practices in order to compete. I chose
to walk away.

I encountered predatory conduct on the part of other agency personnel to
keep me out of "their territory". I discovered that officials would not
give assignments of children that weren't working with the \"right\"
people with an \"understanding\" of how things were done. Laws are
meaningless and everyone knows and accepts it. Facilitators can "own"
children's referrals regardless of their best interests and will hold
them indefinitely rather than allow them to be adopted as soon as
possible through someone else and lose fees.

Some countries' processes are confounded with conflicts of interest by
persons in positions of authority grossly abusing their positions and
profiting from the placement of children in their charge. Directors of
orphanages requested additional donations beyond our typical donation in
connection with an adoption, supposedly with no strings attached but
then stopped communicating once they knew we couldn't or wouldn't come
up with additional donations. Others gave referrals based on payment of
"legal fees" and "donations" for the children but the lawyer didn't
exist and the children didn't benefit from the donations. Adoptions were
threatened if additional money and/or favors weren't provided. Partners
broke contracts and dropped my clients when I refused to make illicit
deposits into bank accounts. Government officials retaliated for
complaints and attempts to assert legal rights. Orphanage directors
threatened to withdraw children from other parents if illegal practices
were complained of.

Discovering that the foreign processes were so corrupt was
disappointing. But far more distressing was the lack of either surprise
or response on the part of US adoption officials. Only after extensive
complaints to Congress members and a barrage of letters to every
conceivable level in the Department of State were complaints acted upon.
Even then, action under pressure was only discrete diplomatic inquiries.
I received broad denials of my allegations at higher levels. In other
instances all communication ceased. At no time was there any attempt to
prohibit unfair agency practices or consider holding accountable those
parties who engaged in improper relationships to get favorable treatment
not available to my clients.

###### Hague is a response to Corruption

Hague came into being due to recognition of baby buying, payoffs of
officials, and the treatment of children as commodities in the
multi-million dollar adoption industry. The International Community
recognized that when money is tied to the assignment of a child, there
is temptation to exploit children as profitable merchandise rather than
place them in their best interests. But the very nature of baby
brokering is hidden and difficult to prove. Receipts and statements
acknowledging the existence of bribes, aren't given by the participants.
So until someone makes the risky decision to report pay-offs to law
enforcement or the media investigates, corruption thrives because it is
highly profitable.

Nationals who wish to adopt can't because their authorities and
attorneys will select US applicants paying high fees over local citizens
who are entitled to adopt for free or very little.. Officials give the
assignments to high paying foreign applicants over domestic. It fuels
rumors of adoptions really being the buying of children for body parts
or other despicable purposes. It invites participation by dishonest
practitioners and organized crime. It blurs lines between legitimate
placements and trafficking for sexual purposes. It induces local
citizens to view it as the same thing. It contributes greatly to
outrageous escalating fees. Corruption is not a victimless crime.

Corruption causes numerous problems and happens in various ways
depending on the type of system in place. When a country adopts out
children via a central referral process, facilitators can attempt to buy
advantageous treatment direct from the Central Authority. Problems can
be worse when direct adoptions from birthmothers allow private attorneys
to place children. It can be difficult to ascertain whether the child
was bought or traded. Few birthmothers report payments they have
accepted because they fear legal sanctions. Occasionally, some do after
regretting their decisions. Birth parents have reported intimidation
when they changed their minds soon after relinquishment. Some birth
parents have misunderstood or been lied to about the permanency of the
placement.

When children are adopted directly from orphanages, the directors can
demand "donations" that allow them to drive Mercedes while their charges
sleep in unheated rooms. The more generous the mandated donation, the
faster and more desirable the child. Orphanage officials also work on
the side as facilitators for certain private agencies to the exclusion
of others. The conflict of interest is ignored by officials.

In some systems, children are listed as "abandoned" but are delivered to
waiting parents by their own birthparents pretending to be a caregiver.
They are told they can expect a generous "gift" from the adoptive
parents for caring for their adoptive child. Occasionally, older
children tell adoptive parents that they were adopted directly out of
their birth homes, not an orphanage as reported, to the adoptive parents
once they can speak English. In the worst case scenario, greed prompts
the kidnapping of babies for sale to facilitators, directors or lawyers
who are known to pay for referrals. In all of this the common
denominator is profit for those conducting the adoptions. Vast sums,
often many years salaries for each child adopted, changes hands under
the guise of being payment for services.

Adoption agencies are among the first ones to admit that "who you know"
and having "the right connections" with officials, etc. is how an agency
succeeds. Many justifications are given. "We cannot impose our cultural
and moral values on countries where corruption is way of life"; "These
officials need to make a little money on the side too", "The end
justifies the means where children are concerned" and more honestly
"It's the only way to survive in this business".

**The US Government recognizes corruption is ongoing in adoptions**

The DOS and Embassies concede that payoffs are commonplace and are often
necessary in order to successfully complete an adoption. US officials
report that the corruption results from impoverished foreign
bureaucracies barely paying the adoption workers and others who process
related paperwork. Foreign law, not US law governs the sending countries
procedure even though it must also satisfy US immigration law. Consular
officials say they cannot intervene in a foreign legal procedure. A DOS
official reported that they balance the competing interests and pressure
of diplomatic relations, desperate parents and agencies' business
interests against a foreign rule of law that is difficult to enforce.
They state they encourage and support positive transparent change.

###### Laws Already Prohibit Corruption in International Transactions

The United States has signed, and other countries have ratified, the UN
Convention on the Rights of the Child: Article 21 states *"parties that
recognize and/or permit the system of adoption shall ensure that the
best interests of the child shall be the paramount consideration and
they shall:*

*...(d) Take all appropriate measures to ensure that, in inter-country
adoption, the placement does not result in improper financial gain for
those involved in it"*

The US has ratified the Optional Protocol on the sale of children, child
prostitution and child pornography. Under it: *"States Parties shall
prohibit the sale of children." It defines the "(a) Sale of children
\[as\] any act or transaction whereby a child is transferred by any
person or group of persons to another for remuneration or any other
consideration;"*

The FCPA prohibits "*paying, offering, promising to pay (or authorizing
to pay or offer) money or anything of value."* This applies to both
direct incentives as well as through intermediaries.

Under Title 8 Aliens and Nationality Immigration Service Section 204.3
*( i ) regarding orphan visas:*

*"Child-buying as a grounds for denial. An orphan petition must be
denied under this section if the prospective adoptive parents or
adoptive parent(s), or a person or entity working on their behalf, have
given or will give money or other consideration either directly or
indirectly to the child's parent(s), agent(s), other individual(s) or
entity as payment for the child or as an inducement to release the
child. Nothing in this paragraph shall be regarded as precluding
reasonable payment for necessary activities such as administrative,
court, legal, translation, and/or medical services related to the
adoption proceedings."*

Under provision 204.3(k)(1), *"An I-604 investigation must be completed
in every orphan case.... In any instance where an I-604 investigation
reveals negative information sufficient to sustain a denial or
revocation, the investigation report, supporting documentation, and
petition shall be forwarded to the appropriate service office for
action. Depending on the circumstances surrounding the case, the I-604
investigation shall include, but not necessarily be limited to, document
checks, telephonic checks, interviews with the natural parent(s) and/or
a field investigation."*

Under provision 204.3(k) 2*, "A consular officer, however, shall refer
any petition that is 'not clearly approvable' for a decision by the
Service office having jurisdiction pursuant to Section 100.4(b) of this
chapter."*

A field investigation should take place due to suspicions of fraud and
corruption pursuant to 8 CFR 103 et seq. Failure of the Consular Officer
to do so could give rise to liability under 22 U.S.C 1199, 2658 and
3926.

Adoption providers that benefit from unfair advantage over other
providers by their clandestine "understandings" with officials are also
violating antitrust laws, engaging in unfair business practices and
other tortious conduct. They violate the constitution's equal protection
clause and human rights provisions. Article 24 of the American
convention on Human Rights states: "*All persons are equal before the
law. Consequently, they are entitled, without discrimination, to equal
protection of the law."* Adoptive parents are entitled to all these
protections under the law. Yet no one has expectations that agencies and
facilitators will abide by the law .

Though bribery and corruption are illegal, obtaining direct proof of it
is difficult. Participants in corrupt practices do not give receipts,
written confessions or make verbal admissions to authorities to provide
evidence of it.

Many countries are signatories to the Council of Europe Civil and
Criminal Convention on Corruption. The US has ratified it. The Civil
Convention states:

*"Corruption is, by its nature, secretive and plaintiffs may encounter
great difficulty in obtaining the evidence required to substantiate
their claim. There are various methods of meeting this difficulty. For
example, certain legal systems provide for an application to court for
an order for discovery, while in other legal systems a judge can appoint
a specific person to obtain the information required."*

The Criminal Convention states:

*"This provision \[23\] acknowledges the difficulties that exist to
obtain evidence that may lead to the prosecution and punishment of
persons having committed those corruption offenses defined in accordance
with the present Convention. Behind almost every corruption offense lies
a pact of silence between the person who pays the bribe and the person
who receives it. In normal circumstances none of them will have any
interest in disclosing the existence or the modalities of the corrupt
agreement concluded between them."* It encourages *"the development of
tools and procedure to investigate the corruption since it will not
generally be immediately available to those victimized by the actions."*

International adoption corruption is beyond the investigative boundaries
of most US law enforcement's reach. Agencies with worldwide jurisdiction
such as FBI and INTERPOL consider these cases to be far too small to
investigate or prosecute . An average adoption corruption case might
involve foreign fees of less than \$ 10,000. Therefore they feel that
limited resources are better spent on cases that involve millions of
dollars and/or violent crimes. Even where there is investigative
interest, jurisdictional thresholds eliminate most cases from
consideration by the US Justice Department and US Attorney's Office.
Generally, evidence of adoption corruption will only be circumstantial.
Facilitators and corrupt officials are discrete. Parents who discover
improprieties are afraid to implicate their own adoption. Making
evidence of bribery the only standard by which corruption is judged,
guarantees it will never be proven.

Civil remedies available to an individual are very limited. Bringing a
private cause of action isn't realistic. The litigation would cost more
than the adoption. Even if there's adequate evidence, attorneys
generally seek far more lucrative cases to accept. Currently, Hague
creates new laws that will be equally unenforceable for parents. That
leaves only the Hague accreditors sanctions against an agency. An
administrative sanction upon an agency is small comfort to a parent who
has lost a child, \$35,000, and has no money or emotional energy left
for litigation.

###### US Policy 

The US government acknowledges the importance of ending corruption in
international transactions. The Department of State brochure on
corruption states:

*\"The fight against corruption is a high priority in U.S. foreign
policy. The United States has taken a leadership position in combating
overseas commercial bribery beginning with the enactment in 1977 of the
Foreign Corrupt Practices Act, and more recently, with the Organization
for Economic Cooperation and Development Bribery Convention, and the
Inter-American Convention Against Corruption.... business and government
can work together to combat the problem of corruption and enhance
transparency."*

During his remarks on \"Fighting Global Corruption: Business Risk
Management\" May 2001 Secretary Colin L. Powell said:

*\"As we enter the 21st Century, more people throughout the world are
rejecting the notion that corruption is inevitable. Success depends on
impartial democratic institutions, open elections, and an unfettered
access to information. Success also requires leadership by the private
sector and active participation by citizens. Promoting integrity in
government and the marketplace improves the global governance climate,
nurtures long-term growth, and extends the benefits of prosperity to all
people.\"*

The Secretary additionally stated *"Corruption and unethical behavior by
public officials are serious threats to basic principles of democratic
government, undermine public confidence in democracy and threaten the
rule of law..... \[C\]orruption flourishes when democratic institutions
are weak, laws are not enforced, political will is lacking, and when
citizens and the media are not allowed to be partners in democracy."*

Department of State asserts this viewpoint should be extended to
international adoptions because of widespread abuses. Their
International Adoptions Brochure states:

*"International adoptions have become a lucrative business because of
the huge demand for adoptable children. The combination of people
motivated by personal gain and parents desperate to adopt a child under
any circumstances, creates the potential for fraudulent adoptions... In
the international area, the Department of State consistently takes a
strong stand against fraudulent adoption procedures. This policy flows
from our general obligation to respect host country laws, to discourage
any illegal activities and to avoid the possibility that a country may
prohibit international adoptions entirely. The Department of State has
unfailingly expressed its support for measures taken by foreign states
to reduce adoption abuses."*

The international adoptions brochure from the Office of Children's
Issues says DOS takes:

" A *strong stand against fraudulent adoption practices"*

Embassies will

*"Ensure that U.S. citizens are not discriminated against by foreign
authorities or courts."*

Our government states that it considers the elimination of international
corruption *"of the highest priority"*. The US has been promoter of
multiple worldwide treaties, extensive reform efforts, foreign aid and
education. These efforts are designed to stamp out corruption and the
detrimental impact it has on world trade and governance. So strong is
this commitment that our government spends BILLIONS of dollars to
support rule of law, democratic governance, promotion of anti-corruption
treaties and diplomacy to convince foreign governments to create a
"level playing field" for financial transactions.

These initiatives however, do not extend to international adoptions.
There has not been a single program to address problems of adoption
corruption and illegal influence despite the notoriety of the problem.

This disconnect extends to their reactions to complaints of ongoing
corruption to the DOS Office of Children's Issues. After writing MANY
letters to the DOS higher-ups of complaint concerning rampant corruption
in a country whereby my clients were denied their rights, I finally
received this response

"*Your letters indicate that you believe that the State Department and
US Embassy Officials do not take allegations of corruption in other
countries seriously. That is simply not true. The Department abhors
fraudulent adoption procedures and the harm they cause children and
families. We proactively and persistently encourage foreign states to
take concrete measures to eliminate adoption abuses. Consular officers
at US Embassies abroad frequently meet with foreign government officials
to seek explanation of questionable practices, state our concerns, and
advocate responsible policies to protect the rights of children, birth
families, and adoptive parents involved in adoptions"*

Even if this were the case, (which I would contend it is not) this isn't
having the desired effect. Rarely a day goes by that another story
doesn't appear in publication decrying yet another corrupt adoption
process uncovered or another victim of the process hurt. These
disclosures are NEVER by our own authorities. No measures have been
undertaken to control these problems by action against agencies or
screening of practices. Ask any Congress member how many parents come to
them because they cannot get a response to problems and concerns form
BCIS or DOS. They should not need to apply pressure to get the
Department to listen.

####### Hague Regulations are Agency Oriented

The drafters reported their efforts to take into considerations the
"*competing interests of the adoption community"*. The drafters
definition of the "adoption community" was very weighed toward agency
interests because that was who primarily advised DOS and the drafters -
those who stand to profit the most from adoptions. They did solicit
input from everyone but received very little from non-agency interests.
While parents may have their own experiences to share, they will
generally have no comprehensive understanding of the broad legal and
ethical issues under consideration. They are not legislators or policy
experts and so did not have the same ability to comment as those with
professional interest. As one of the primary intended beneficiaries
under Hague, their interests must be protected by the State.

The drafters' preface to the latest proposed regulations says *\"one of
the most challenging issues facing the Department was how comprehensive
and stringent these standards should be, bearing in mind the
desirability of minimizing the cost and burden on agencies and persons,
especially on small entities\...\...**without unduly changing the
adoption community\'s current structure".***

This has been symptomatic of the entire approach to Hague
implementation. It was developed not from the starting point of what
will protect children and families but from maintaining a pre-existing
system that brought us the disasters in Cambodia, Romania, Vietnam,
Guatemala and Georgia as well as \$35,000 adoptions.

The application parameters for accreditors were also crafted to all but
guarantee that the current voluntary accreditors (who set the standards
for prior practices of many agencies) will be named as the official
accreditors under Hague. Once again, the bias was toward preserving the
current system.

###### Maintaining the Status Quo is not the Purpose of Hague 

The focus during the process, has been on the regulatory framework
instead of the critical components of the best interests of children and
the adoption process itself. Acton Burnell have twisted themselves
inside out attempting to both comply with Hague and also maintain and
support the "current adoption system". These are incompatible goals.
With the exception of the much needed consumer protection provisions
that make agencies accountable and liable for fraud, the regulations are
primarily about a sub-bureaucracy of accrediting agencies for monitoring
adoption so as to make the present adoption system Hague compliant. The
priority of Hague should be the integrity of adoptions.

European international adopters can generally adopt for half the cost of
Americans. It is our US agencies that enabled foreign officials to take
illegal payments for granted. Under this system, adoption costs have
skyrocketed.

Has the existing structure served so well that it should be preserved at
all costs?

## Independent Adoptions Must be Protected 

Independent or parent initiated adoption is specifically permitted under
Hague. Parents can save considerable amounts of money by applying to the
central authority themselves where foreign laws allow this. But too
often independent adopters have difficulty getting an appropriate
referral. The children will be assigned unofficially to the agency with
"good relations" in the region. Independent adopters in some countries
may be at a disadvantage compared to adopters represented by "connected"
agencies.

The role of the Central Authority includes

*"\...monitoring and facilitating individual cases involving U.S.
citizens".*

This language indicates that it is incumbent upon the Central Authority
to assist individual adopters. If foreign law permits independent
adoptions then the Central Authority must assure that independent
applicants receive the same consideration as those represented by an
agency.

###### 

###### The Role of the Central Authority 

Article 8

*"Central Authorities shall take, directly or through public
authorities, all appropriate measures to prevent improper financial or
other gain in connection with an adoption and to deter all practices
contrary to the objects of the Convention*. "

Much attention and detail has been paid to the functions,
responsibilities and rules concerning accreditors and agencies. Missing
is elaboration about the role and responsibilities of the Central
Authority itself toward adoptive parents.

The regulations need to delineate the duties of the Central Authority
and under what circumstances and how it will intervene in the process
when problems arise beyond the accreditation scheme. Under Hague, the
Central Authority is charged with communication with foreign governments
concerning adoptions. The DOS and Embassies already serve in this
capacity and will continue to do so even in non-Hague countries. They
will still not have direct jurisdiction over foreign officials actions.
They will still be unable to enforce foreign laws any more than they are
now.

Article 33

*A competent authority which finds that any provision of the Convention
has not been respected or that there is a serious risk that it may not
be respected, shall immediately inform the Central Authority of its
State. This Central Authority shall be responsible for ensuring that
appropriate measures are taken.*

The buzz word of this process has been "transparency". The DOS talks of
the goal of this as part of Hague, the lack of this as a problem in
foreign countries. Absent is any plan to make the DOS's procedures more
transparent. The operation of the Central Authority itself must be
consumer friendly and approachable. Parents should feel that the Central
Authority is there to support them not oppose them.

### The Embassies and DOS must mandate equal protection and due process for all adopters. A lawful and rational basis for referrals to applicants must be ascertained in each country. Written policies and procedures must be fixed and adhered to for the process to be considered lawful. Variable, vague or arbitrary methods of processing applicants must be prohibited. The Central Authority must develop a mechanism to monitor adoptions for trends of preferential treatment and discriminatory assignments of children. Unusual unexplained numbers or patterns of relinquishments occurring with any particular provider must be considered evidence of corruption or baby buying. The regulations must prohibit any provider from accepting or even seeking improper preferential treatment that results in an increase in business, fees or other advantages. 

For Hague's implementation to be constitutional, adoptions MUST
guarantee equal protection and due process for all applicants. The
absence of these provisions will only bring about legal challenges to it
and continued corruption. Any adopter complaining of discriminatory
treatment must be entitled to Central Authority intervention and
assistance.

####### Fees

The draft attempts to solve the problem of corruption and trafficking in
Section 96.36 prohibiting child buying. Already explained was why a
legal prohibition alone is not effective. This lack of "teeth" is
compounded by Section 96.40 which allows lump sum fees for the foreign
fee. Without a breakdown, no one, not parent, Central Authority or
accreditor, knows where that money is going. This invites the use of
money to gain competitive advantage by using a portion of it to secure
favorable treatment by officials or influence the availability of
children.

There must be mandatory disclosure of fees with the information recorded
and tracked by the Central Authority in order to watch for abuses. Only
an Embassy can evaluate if it is unreasonable for a facilitator to claim
it took 20 hours of work and 30 in transportation to obtain a new birth
certificate or adoption decree. If the town is 12 hours away and the
process involves unusual difficulty, it might. An accreditor could not
determine if such a charge was reasonable or not or it reflected an
unusually high charge.. Deviations from typical fees might only be
noticed by someone regularly following and knowlegable about adoption
practices in specific regions . The fee can only be evaluated provided
it is specifically broken down to reflect payments for each activity.

Every person associated with an adoption that is paid must be named.
Their function and title (profession) should be listed as well as their
hourly rate of pay. Breakdown of types of charges should list specific
activities performed, such as legal work, translation, interpretation,
transportation (if provided), escort for adoption matters, assistance
with accommodations, obtaining documents, drafting documents, court
appearance, Ministry liaison, obtaining medical records, assistance
obtaining relinquishments and history, or filing papers with a regional
or federal data bank, liaison with orphanage, birth certificate, visa
assistance, medical exam for child.

Who the child providers (orphanage directors, Ministries, Attorneys of
Birthmothers, or other Child Welfare Officials) choose to work with (
preferred agency, other attorney or individual adoptive parent) requires
monitoring. Detection of preferential treatment or discrimination
against some applicants or agencies, could only be noted by someone
monitoring that country or region. Children must be made available for
adoption according to laws and fixed procedures. Arbitrary, unofficial
or undisclosed standards and decisions that change according to
applicants or agency, must be actively rejected by the Central
authority. . If all applicants are assured they will be considered
equally regardless of their "connections", there will be no need for
anyone to engage in corruption to obtain a child referral.

## Fundamental to protecting children's rights is the Hague Convention prohibition against "*improper financial or other gain from an activity related to an intercountry adoption"*

Article 4 of the convention requires that authorities have *"given their
consents freely"* and

... (3) *the consents have not been induced by payment or compensation
of any kind* and Article 24-" *Only costs and expenses, including
reasonable professional fees of persons involved in the adoption, may be
charged or paid."*

This raises the same problems already occurring with the absence of
concrete proof of illegal payments. Other indicators of corruption must
be prohibited, guarded against and investigated because of the
difficulty of proving bribery and child buying. Under Article 24

"*The recognition of an adoption may be refused in a Contracting State
only if the adoption is manifestly contrary to its public policy, taking
into account the best interests of the child. \...*

*(2) Only costs and expenses, including reasonable professional fees of
persons involved in the adoption, may be charged or paid.*

*(3) The directors, administrators and employees of bodies involved in
an adoption shall not receive remuneration which is unreasonably high in
relation to services rendered."*

"Reasonable" fees will vary but in a third world nation they are far
different than in the US. International adoptions occur because of
profound and pervasive poverty in that country.

Every foreign fee presently is "unreasonable" on its face because in a
lump sum it usually constitutes many times the annual salary of the
average person in that country. Facilitators are "rich" in these
countries where often the annual income is \$500. Current typical
payments for foreign fees are far out of proportion to work performed.
How could anyone justify 20 years salary for two weeks work?

Breaking down foreign fees though, will not be enough to prevent
corruption. Even if specifically itemized by hourly rate, agencies might
still charge excessive and unreasonable fees and claim compliance. One
agency may charge their clients \$100 per hour for 100 hours of legal
work to facilitate an adoption. Another may charge the typical local
rate of \$10 per hour. Both may provide the exact same services in the
same manner. Agencies could defend this with the explanation that their
legal providers are better qualified. Then, if they are given advantages
by the sending country's adoption officials or somehow have many babies
relinquished into their care for adoption they can say that the
country's central authority prefers to work with better qualified
providers.

Fees must be evaluated according to the country's economy and capped at
a realistic sum for all providers. A comprehensive fee schedule might be
developed. For example, in the New York State Law Guardian system all
attorneys are paid a fixed hourly rate and have limitations on the
amount of hours they may put in for. They must apply to the court for an
extension of those hours if the case requires more time for a particular
task than is typical. If they wish to work in this capacity they must
agree to regular training and a code of conduct and work under the set
fee structure. They are only allowed to submit a certain number of
billable hours without application to the court for an exception for an
extraordinary case.

All parents, facilitators, agency personnel and others must report in a
sworn statement how much money they received or paid per adoption. They
must declare they have not paid anything to any officials or disclose
any legitimate payments. Such statements should be required before the
child receives a visa or other US approval of the process and kept as a
permanent part of the adoption file. These amounts should be reviewed,
recorded and tracked by Embassy officials or DOS in order to detect any
deviations from norms or indications of improper expenditures in the
process. Only with the combination of fee limits and monitoring,
mandatory equal protection and involvement of the Central Authority, can
corruption be effectively opposed.

####### Parents' Interests are not protected by the Proposed Regulations

The current regulations will help improve adoption in some respects from
a consumer's view but the cost of implementation will also be hefty.
Parents will have the right to press for sanctions against providers,
but the regulations don't create redress for harm done to them. Despite
new protection to speak out against their providers without retribution,
parents only recourse against providers on their own behalf will still
only be costly litigation. For all but the most serious cases of
misrepresentation, fraud and "wrongful adoption" there will be no means
for parents to recoup losses or collect damages.

For the vast majority of disagreements there should be a mechanism,
independent from the accrediting system, to negotiate problems in lieu
of or before litigation or filing administrative complaints. There
should be a system developed that will help parents having difficulty
communicating with their providers in an informal manner that is
supportive and not confrontational. A formal mediation process could be
made available for more difficult issues that are not resolved through
informal methods. Simple available interventions early in the process of
disagreements would prevent costly investigations, paperwork and
hearings by accreditors as well as empower parents. Arbitration should
be an available remedy to consumers in cases where the sum in dispute
renders litigation an unrealistic option against an agency. This would
give parents access to a remedy that would support justice without high
costs for either parents or agencies.

Hague adoption law will be understood by agencies as a matter of
necessity in order to obtain accreditation. But parents will have no
such sophisticated understanding of their new rights, obligations or
limitations of the new laws. They will have no source of education or
interpretation of these laws. They will once again have to take the
agencies word for their rights in the absence of an entity to make this
information known and to answer questions and advise parents when they
are unsure of the law.

An independent entity should be created to educate and advise parents,
monitor complaints and trends so as to recognize emerging issues and
address them before they become widespread and entrenched. This entity
would report these issues and patterns to the Central Authority and act
as a liaison to it on behalf of parents. This entity could also act as a
central depository for legal research, advocacy information, trends and
statistics that are of specific interest and benefit to PARENTS and
CHILDREN not providers. This organization could assist accreditors and
DOS in developing standards, best practices and adoption education from
the viewpoint of the family not just professionals. Just as agencies can
turn to their voluntary organizations for support and information, this
entity could act as the primary support and referral source for
families. It must be officially recognized as are accreditors and
agencies by the Central Authority to give parents a formal voice in the
adoption community.

A similar suggestion was made by the Evan B Donaldson Foundation but was
not included in the draft. Parents have been grossly underrepresented in
the international adoption community historically.

**Humanitarian aid**

As world citizens we need to recognize that all children are "our
children". Central to adoption practice must be a firm and absolute
commitment to assist the children who remain un-adopted and
disadvantaged. We need to support efforts to keep children in their
homelands. We must give aid that goes beyond maintenance for today and
creates a better tomorrow. Donations must get to the intended
beneficiaries. Monitoring for abuses and diversion of funds and
materials must be included in any humanitarian aid project. The adoption
community must become less competitive in this work and create
assistance plans that create a whole greater than the sum of its parts.
Combining resources and aiming at longer term goals than providing
vitamins and diapers will give children a chance at a better future.

Children sustain serious permanent damage form early deprivation. This
is one reason why private birthmother adoptions are sought by parents.
But these programs are at higher risk for abuses and those abuses can be
worse than those with a central authority system. The need for DNA
testing in Guatemala is an example of the problems this less regulated
system brings. By supporting a system that allows Nationals to adopt
early on, there is less need for lengthy registry times. Central
Registry systems are less vulnerable to abuses.

Most Nationals seek newborns. Longer waiting times probably do not
result in many more Nationals adopting. If the system will truly support
Nationals to adopt (rather than prevent them from doing so because of
financial preferences for international adopters), then the need to drag
out the waiting time before foreign citizens are eligible. Registry time
could be shortened to a healthier length of not longer than three
months. This would benefit children's development greatly. Every effort
should be made to allow children in a home as early as possible.

Hague regulations must also create an office, entity or task force that
will support humanitarian efforts, assist in prevention of pilferage and
offer adopters a way to give back to their children's birth land. By
pooling resources, sharing expertise and working in unity, parents,
agencies and our government can bring more meaningful benefits that are
consistent with the true spirit of Hague to children. As the country
that does the majority of adoptions in the world, we must act in a
leadership role and show countries we want to do much more than merely
take their children to our homes. By doing so we will take their
children into our hearts.

###### Beyond Hague

While Hague will implement legal change in adoption as part of its
process, most of the basic concepts presented herein are generally
applicable to all adoptions. Many countries are not now Hague
signatories and even those that are may not implement it for some time.
The United Sates is struggling to design and implement a workable scheme
in a timely manner itself. We cannot permit illegal and unethical
adoption practices to continue until implementation is complete.

The need to eliminate corruption is universal and pertains to all
countries that permit adoption. The constitutional principles
guaranteeing all applicants due process and equal protection should
pertain to all adoptions, Hague or not. These are fundamental
cornerstones of law that are embraced under the constitutions of nearly
all countries including emerging democracies.

The DOS presides over a US sanctioned legal process in its oversight and
approval of international adoptions. The recognition of the citizenship
of its children by automatic operation of law under statute or by an
immigration process is its legal approval of the foreign process. It is
not a removed bystander in this process with no rights or obligation to
demand legality. As such, it must comply with our own constitutional
mandates as well as foreign law. The United States government has both
the right and obligation to demand from all sending countries an
objective and lawful adoption process free of corruption and
unconstitutional treatment. They must not approve or accept anything
less on behalf of its citizens regardless of whether the countries are
parties to Hague or not.

The DOS must mandate a lawful adoption process in all countries without
exception, where it permits and approves any international adoptions.

###### Accreditors Must Be Objective

All accrediting entities must be independent and unrelated in any manner
to other adoption related entities. All accreditors or applicants to be
an accrediting entity must establish that they are free of any conflict
of interests. The integrity of the system requires that directors,
employees and board members of any accrediting entity have no economic
or any other ties to directors, employees or boards of any entities
providing any type of adoption related services whether they are
accredited or not and whether they are doing so in Hague member
countries or elsewhere.

###### The Strongest Solution is Assuring Equal Consideration of all Applicants

In the course of attempting to conduct adoptions, I have had some
interesting conversations with Consular Officers. These public servants
are put in missions and expected to comply with "policy" goals of the US
but with very limited resources. They are advised that their duty under
law with respect to adoptions is to screen each adoption for BCIS to
assure they are "orphans" under the current legal definition- no more
than that. They aren't even looking at the foreign process. This is
significant in so far as some current legislative proposals are being
suggested that will eliminate even this minimal scrutiny. While it is
important to prevent the situation where a parent has adopted and then
cannot get a visa, it is important that there be screening at some point
in the process for trafficking.

The Embassy Officials do not create the standards or issue the lofty
rhetoric of DOS that the US vigorously opposes adoption fraud. They are
posted in countries where law and order are not a given. Then they are
charged with making a finding of legality in adoptions. They view their
job as to see to it adoptions pass a " sniff test" before issuing a
visa. They contend it is parents who, because as they put it, "the
demand is greater than the supply" have created an atmosphere ripe for
bidding. As one consular officer put it "it is not entirely the fault of
the foreign governments, our (US) families come and create the demand
and we must accept our part in this". I take this to mean that US
parents will pay what they think they must to bring a baby home, it is
not just foreign officials failed oversight or corruption that brings
about a flawed process that is negotiable for the "right price". My
position would be that it is more the fault of their adoption providers
who make these supply side economic decisions for their clients in order
to compete. These consular officials are left with an awareness that the
process is very corrupt but the expectation on the part of both the
naive and idealistic, that the US government oversees the process of
international adoption and therefore we can rest assure it is lawful.

These inconsistencies must be addressed now under Hague or they will
never be. The only way to stop this is to make it impossible. All
opportunities to hide corrupt practices amid large foreign fees and
favorable treatment must be taken away. The flood of corruption cannot
be stopped by the Embassies without proper tools and resources to do so.
They alone, cannot and will not enforce international law, eliminate
corruption and make adoption an honorable activity again. They can, more
realistically, assure that strong specific laws and restrictions on
behavior are complied with. They must have a specific framework, that
eliminates potential for corruption, to enforce. They cannot go out and
root out corruption in the foreign countries.

The difficulties of detection and prosecution of bribery and improper
influence in foreign countries requires a more practical solution to the
problem of corruption. It is clear that an accreditation system is
better suited to the management of standards, record keeping and
disciplinary actions against agencies than combating corruption.
Regulation and capping of fees will be essential but may still allow
"connections" and surreptitious deals to take place. Determining
"reasonable" payment for adoption work will be complex, particular to
the local economy and subject to disagreement.

The simplest and most complete way to eliminate corruption is consistent
with universal constitutional principles is to assure due process and
equal protection for all adoptive applicants. Providing a fair process
will require monitoring of providers by the Central Authority and being
vigilant for signs of improper procurement of children (such as
suspicious numbers of children being placed through specific providers
absent legitimate explanation). It will also require the Central
Authority to establish up front, a rational, transparent, objective and
consistent system of making referrals of children. This eliminates the
incentive for paying for favorable treatment to get access to children.
By forbidding disparate treatment thereby assuring due process and equal
access to adoptions, many other issues are eliminated. This role must be
embraced by an involved Central Authority that is not restricted to
maintaining current systems whereby many agencies have found success and
profit. Only a multi-pronged approach will defeat corruption. No one
measure will suffice. And only the DOS has the power to effect this
change.

All focus by Embassies and DOS has been on the LIMITS of their authority
to change foreign procedures. There is never any focus on amending or
limiting the improper practices of agencies participating in the
corruption for economic advantage . There seems to be a generalized
blindness by the Department to the provider participation as though they
are powerless to just say no to corruption. If any one current agency
stopped their corrupt engagements they would be out of business due to
the competitive advantage of others. But if ALL agencies were prevented
from participating then ALL agencies would find themselves on that
"level playing field" that the Department recognizes as so desirable.

Fundamental human rights require that children not be sold or their
placement determined by anything but their best interests. DOS needs to
maintain this issue in the forefront of adoption practice by
establishing a task force or office to examine and monitor human rights
issues in relation to international adoption. The tendency in the past
has been for the adoption community to interpret criticisms of adoption
practices by international human rights organizations as being
"anti-adoption" when they may well be "anti- corruption in adoption".
The adoption community needs to listen and enter into a dialogue with
these organizations. By considering valid concerns in a collaborative
setting, we may find common ground in divisive issues. The beginning of
Hague implementation is the perfect place and time to begin such a
cooperative relationship in order to best protect the interests of
children and improve adoptions.

The choice of agencies should be based on the ability of a provider to
give prompt, professional, honest and reliable support during both
preparation and the adoption process abroad. It should not be based on
the ability to secure the "best baby " ahead of other agencies less
"connected". If we continue to allow this we violate both the basic
human rights and best interests of children. Money should not equal
success in adoption.

As Americans with access to far more money than those in the countries
we adopt from, we need to exercise our financial strength judiciously.
We need to move the adoption process toward the support of ALL children
who need homes not just giving "our own" child one. We need to direct
adoption financial proceeds toward humanitarian aid that will create
futures for children otherwise doomed to the cycle of poverty that put
them in orphanages to begin with.

We need to decide if Hague is to be the turning point in a deteriorating
adoption system or a band-aid designed to satisfy special interests.

Constitutional protections, common sense monitoring and capping fees
will go a long way toward curbing corruption and fulfilling the ideals
of Hague.

By implementing these approaches to adoption, the United States will
demonstrate our commitment to the "the best interests of ALL children".

**Summary of Proposed Changes to the Regulations**

Equal Protection and Due Process

The DOS in its role as Central Authority shall assure that no applicant
or service provider is discriminated against unfairly. The Central
Authority will review another country's adoption procedures for clear
objective criteria for applicants. It shall monitor the process to
assure due process and equal protection for all applicants

Upon complaint of violation of these rights it shall intervene to assure
applicants are afforded all their legal protections.

No applicant or service provider may seek or accept any favorable
treatment that provides any advantages over other providers or adopters
throughout the process on the other country unless:

1.  the provider is given preference pursuant to a legal procedural or
    administrative policy based on licensing, authorization or other
    special status under that country's laws that is available on an
    objective basis to all other accredited agencies

2.  done pursuant to a uniform policy that gives preference to providers
    based on clearly established considerations and measurable standards
    under their laws or administrative policies. ( eg., registration
    requirements, the provision of post placement reports) that impact
    the providers ability to act in the best interest of the children,
    and comply with the sending country's foreign law such as provision
    of post placement reports or other assurances of the well being of
    adopted children

Agencies that have complied with all laws and policies may be given
preferential treatment over those who have violated policies or failed
to meet written objective standards.

Arranging or procuring unfair advantageous treatment from another
country's central authority by an agency will be considered a violation
of regulations and may result in debarment or other accrediting
sanctions even without evidence of illicit or improper payments. Parents
shall be entitled to assistance from the Central Authority in the event
that they are discriminated against during the adoption process or are
denied due process.

######## Fees

All fees for adoption services must be specifically itemized to reflect
the nature and duration of all work done. The name, title, hourly rate
and capacity of each worker shall be noted. Fees shall be capped
according to the local economy with oversight by the Central Authority
(or local Embassy). Unreasonable or excessive fees will mandate an
inquiry into the reason therefor.

All parents and adoption providers receiving any compensation must
submit to the central authority (or local Embassy) a sworn statement
itemizing all fees and expenses paid or received as part of the
adoption. Any falsification of information shall be a violation of the
Hague regulations and will affect accreditation as well as other
applicable criminal laws against perjury.

#### *Parent representation*

An office of Parent Advocacy shall be established to assist parents in
their adoptions by giving advice support and acting as a liaison to the
Central Authority. This office shall be recognized as an official body
under the Hague regulations with standing to file requests, ask
questions and give opinions under the Hague scheme. It will be included
in any communications, announcements and decision making that involves
other participants in the adoption regulatory plan. It shall be
permitted to represent parents interests generally and specific cases to
accreditors, agencies and the central Authority as appropriate or as
requested.

The office shall be funded under the budget of the Central Authority but
act completely independent of the Central Authority. It will represent
the interests of parents and children exclusively, not the Central
Authority or agency or accreditors interests.

The office will act as a central depository for educational and and
legal information for parents and make public information and
developments of a legal, political or procedural nature that may be
relevant to parents

The Office shall maintain a listing of referral resources for parents
including adoption professionals, legal consultants, parent support
groups and medical resources

The Office will monitor issues and trends that may require action or
reporting to the Central Authority.

The Office shall offer an informal assistance to aid in communication
with agencies when problems arise that need intervention to solve.

The Office shall arrange and offer a formal mediation process to
agencies and applicants that are unable to resolve conflicts through the
above indicated informal process

*Arbitration*

A completely independent binding arbitration process shall be mandatory
for disputes and claims valued under \$35,000 unless opted out in the
contract.

*Accreditor Objectivity*

All accreditors must be independent and free of any ties or conflicts of
interests with any adoption related entities of any kind. This extends
to common ties of Directors, Employees, Board members or anyone with any
economic interests in either entity.

######## Humanitarian Aid Office

The Central Authority shall assemble a task force or create an office to
research, evaluate and suggest improvements and develop programs to
coordinate and improve humanitarian aid to children as a part of
adoption programs. No agency or applicant shall be mandated to
participate or contribute to this effort.

######## Humanitarian Aid

The Central Authority will, in collaboration with other Central
Authorities, oversee and assist in the management and oversight of any
donations mandated by a country's adoption program if requested by the
other Central Authority.

######## Human Rights

The Central Authority shall create an office or task force to examine
and monitor the issues of Human Rights as they relate to adoption. It
shall collect data and expert reports and make consistent efforts to
promote improvements in adoption practices to protect children's rights.

**APPENDIX A**

Graham's Gift Children's Foundation (GGCF) was formed as a demonstration
pilot adoption project. It was designed as a substantially different
approach to international adoption. As an attorney and adoptive parent I
saw the need for an alternative to the business as usual in
international adoptions. The project revolved around several underlying
concepts both proven and new.

1.  Foreign adoptions could be most cost effectively and professionally
    be conducted by bar association groups with a demonstrated
    commitment to human rights NOT unlicensed facilitators. With GROUPS
    of attorneys corruption could be minimized with mutual oversight and
    preexisting business support leveraged. Adoption is a legal issue.
    Lawyers are suitable providers in conjunction with social workers
    and translators abroad.

2.  Excessive money is being paid for foreign services and not accounted
    for. It is generally acknowledged and accepted that adoption is rife
    with corruption though the extent is not clear. Adoption fees must
    be entirely transparent to eliminate corruption. If all funds are
    accounted for it is difficult to find excess money to split or use
    for improper pay offs .

3.  Adoptive parents and agencies should support the orphans who remain
    behind un-adopted in the country without opportunities for a
    productive adult life. Educational interventions at critical times
    in orphans lives prevents the cycle of poverty that creates future
    generations of orphans.

GGCF made agreements with Bar Association groups to facilitate adoptions
of children already relinquished and housed in orphanages ( not private
adoptions directly from birthmothers which we categorically oppose in
international adoption). All partners were chosen based not just on
their professional status but on their stated commitment to human rights
and child advocacy issues. As Director, I traveled to each country to
meet my potential partners, obtain approval of government officials,
review law and procedure and assure legitimate and ethical operation.
Our project allowed for flexibility in each country to suit the needs
but generally one older orphan was to be sponsored through college or
trade school for each child adopted through our program. Post Soviet
countries usually make higher education available free to youth but they
need financial support to live while they study. Orphanage graduates
suffer a disastrous rate of "life failure" (90%). We offered to run an
early intervention project at orphanages employing the college students
we sponsored supervised by college faculty. We had a wide variety of
disciplines willing to consult and participate. The project was
enthusiastically received in five countries out of eight. Other
countries were eliminated as risky, unacceptable partners or legal
impediments.

We set up a TOTAL agency and foreign fee structure of \$9,000-9,500 with
\$3,000-3,500 going to educational sponsorship and Orphanage aid. All
work would be performed by certified translators and licensed attorneys.
Parents were expected to participate by doing the legwork (mailing,
photocopying, communication, paperwork submission) but always with
complete legal templates, advice and support. We provided extensive
realistic adoption preparation and education materials. GGCFs adoptions
were approximately half the cost of others.

The project was initiated with great enthusiasm and many applicants. We
only accepted a small number of clients for the trial to minimize risk
to clients and assure plenty of attention to each as we worked the first
cases.

With ideal professional partners, reasonable fees and substantial
humanitarian aid GGCF looked at though it might make a serious statement
about alternatives to "business as usual" in adoption. But that is not
what happened. One after another each country's project failed due to
corruption and the flawed process of adoption which in the final
analysis is always about the money at the core. Like Diogenes searching
for an honest man, I am still seeking a country where ethical adoptions
are possible.

**Appendix B**

**Specific Instances of Corruption**

I considered and even traveled to countries where I explored the
possibility of starting a program of adoption beyond the countries
mentioned below. There, before I attempted to begin a program, I
discovered just how openly corrupt some lawyers and officials can be.
The first country I had to eliminate involved a lawyer who wanted me to
"get rich Americans and they pay \$50,000 and we split it". This was the
first clue I had that practitioners and officials will frequently commit
to honest and ethical practice in initial contacts, only to later assume
that this is what we are expected to say but not mean. They assume that
pretense of ethics and legality will be dropped once we actually start
operating or even seriously talking.

**Country 1 -** I traveled to Country 1 and met with a high level
representative of the Ministry of Education in the capital accompanied
by a President of a Bar Group. The Ministry official expressed approval
and optimism about our project proposal. She disapproved of private
birthmother adoptions and the lack of support for orphanages in
Country 1. She indicated there was a long line of Country 1 parents
waiting to adopt healthy infants but were unable to because of private
foreign direct birthmother adoptions arranged through private attorneys
and agencies for hefty fees. She explained Country 1 parents would
generally not adopt unhealthy or older children and these languished in
institutions. She stated the older children would greatly benefit from
support through vocational or higher education. The Ministry notified me
that they would discuss the implementation of our project on a trial
basis but was very optimistic.

The embassy was surprised and very excited to hear of our having made
this inroad to opening of the orphanages. They visited the orphanages
and reported them to be in deplorable condition. Without waiting for the
project's official approval or initiation and without consulting me they
notified several adoption agencies operating private birthmother
programs in Country 1 that the toddlers, older and handicapped children
in institutions might be available soon under our current negotiations.

I received word that the Ministry had decided they were not willing to
permit orphanage adoptions, educational humanitarian aid or other
projects, after all. I was given no reason. I was told the Ministry
needed no educational aid for the orphans and early intervention
services in orphanages would not be possible.

While disappointed I accepted this as a touchy political decision that I
assumed came from higher ups. I was surprised at the complete turnaround
in their attitude but if this was the decision it was out of my hands
and chalked it up to a good try and focused attention on the other
countries.

Several weeks later I learned of a "new" program of toddlers being
available from orphanages through another US agency that had been
informed of the Ministry's tentative approval of our project. I
contacted the Ministry and was assured that any such program was
impossible and illegal. I contacted the Embassy to ascertain what the
real story was and received conflicting answers in emails and by phone
as to how this was possible. I demanded answers from the Embassy as to
the legal status of adoptions out of Ministry facilities and whether
they were or were not legal according to the Embassies understanding.
The Embassy refused to clarify this matter. At my suggestion that either
Graham's Gift was being misled by the Ministry about the legality of
adoptions out of institutions, or that the agency doing adoptions out of
orphanages was engaging in conduct either misrepresenting the status of
these children, or some other way around the Ministry's policy, all
communication stopped from the Embassy.

The last few years of countries closing to adoptions has demonstrated
the damage that can be done by complaining of improprieties in
adoptions. These processes need to be fixed without quite literally
throwing out the baby with the bath water. I warned the Embassy that
their actions in ignoring this problem were the exact type of blindness
that caused fiascoes that result in closures of countries to adoptions.
But I did not complain of this publicly or file any formal protest for
fear that the country might close if allegations of improprieties got
out.

Subsequently the country has been closed anyway amid allegations of
illegal actions on the part of the agency I had previously raised
questions about with the Embassy. A member of their staff was arrested
and the matter has not been resolved. Details of this matter have been
kept very quiet. This agency's clients have been warned not to speak of
the operations of this agency to anyone.

**Country 2**- In Country 2 GGCF entered into partnership with a Bar
Group. They assigned an attorney and professor at a regional law school
to the project and she in turn hired an interpreter. I met with both of
them and the Minister Of Education in a trip to Country 2 to obtain
approval and review procedures for what was classified as an independent
adoption where thew Ministry not the agency gives a referral to an
applicant. The first three dossiers were sent for translation and
registration with the Ministry of Education as required. My first client
traveled at the alleged invitation of the Ministry yet was informed
there were no children available for her except handicapped and deformed
children. The Ministry denied that the dossier had been registered at
all despite evidence to the contrary! The attorney claimed to have no
explanation but did hold a copy of the registration and invitation. The
Ministry refused to explain why I had been personally told our project
and independent applications were welcome in Country 2 when I had met
with her previously, but were now being rejected. Without either my or
the Country 2 counsel's knowledge or approval the translator took the
client to representative for a very large and well known Country 2
accredited agency who just happened to be available and was willing to
"help" my client for a "fee" provided no one was told and the signature
of the agency was removed illegally and provided our agency ( GGCF)
agreed to enter into a confidential financial arrangement. They could
then "fix" our problem with the Ministry. This practice is known as
"umbrella-ing" and has been very expressly ruled by the Country 2
Ministry to be illegal. The purpose of their accreditation laws was to
"eliminate the middleman assigning children and allow only accredited
agencies to operate in Country 2 ". Yet more than a hundred agencies
have continued to work unaccredited *for a price* under another agencies
umbrella. They just change the names on the agency papers and Country 2
routinely ignores its own reforms.

When I declined to enter into such an illegal deal it became crystal
clear that there would be no referrals for my clients in Country 2 then
or at any future time without the necessary "connections".

My client complained of this attempt to solicit illegal business. The
Ministry officially denounced this agency's activity to gain clients
this way as illegal. They went so far as to say it would be "punished"
but no referrals were available to my client just the same. Nor was an
explanation of this situation given. My letters sent in protest to the
Ministry thereafter were ignored. . I refunded my Country 2 clients fees
and reimbursed most or all of their expenses. Country 2 is notoriously
corrupt. I thought that the project might do better in a country where a
new start was possible, a country where the typical high profit system
was not so entrenched.

**Country 3**- Country 3 was a program that I had the highest hope for
and that I made the greatest expenditure of money and time. I made two
trips to Country 3 where I met with the Bar President and head of the
Legal Aid Bureau on many occasions. I attended an Executive Committee
meeting where our partnership was voted on and approved and plans were
made for both adoptions, educational aid projects and possible expansion
to other humanitarian aid projects. We held meetings with top officials
of the Ministry who gave formal approval and requested we collaborate on
infrastructure support. The result was a written executed and
authenticated memorandum of understanding with the Legal Aid Project of
the Country 3 Bar Association whereby Graham's Gift would conduct
adoptions and humanitarian aid projects with them. All parties
purportedly shared GGCF's humanitarian goals and commitment of ethics.

I was referred by the Ministry to work with Orphanage X, the government
approved orphanage system and also met with private Home Directors from
charitably funded homes. Orphanage X works with agencies around the
world including the United States. I was advised that the paid
facilitator for a US agency was also a paid employee and legal
consultant for Orphanage X, an enormous conflict of interest at best. I
indicated that we would not enter into any agreement unless independent
legal counsel were used and that we would be assured that all donations
would be used for children.

I toured Orphanage X and advised them that I had been urged by the
Ministry to work with them. When I told them of our humanitarian aid
donations they were very enthusiastic stating that they desperately
needed infrastructure support. We discussed having the aid for their
organization go where it was most desperately needed rather than all to
educational initiatives. A hungry child cannot study. We were willing to
apply aid wherever it could do the most good. We indicated a willingness
to be highly flexible in aid applications so long as they were
independently monitored and confirmed for my board of directors.

Orphanage X "lost interest" in working with us with mandated
accountability and proper legal relationships. They wanted both the
facilitator legal fees and the donations but not if ethical standards or
financial accountability was part of the deal. I decided to use other
Children's Homes but soon encountered similar issues.

One director immediately requested we fund a "computer project" in
addition to our proposed fees and donations. He said this request would
have no effect on whether or not my clients were given a referral
however there was no communication thereafter when we declined to fund
it until he learned I had been in communication with the Embassy about
the legal problems we were encountering.

Another Children's Home director upped the ante after our initial
agreement demanding higher and higher fees for his referrals, no
accounting for aid and finally a one month paid vacation to the US for
himself, his wife and child! I consulted with the US Consul concerning
these outrageous practices. I expected the Embassy to take action to
discourage these practices but they did not. They did advise me to avoid
dealing with such providers. I advised them that I hoped to only deal
with the Bar Association in the future who I expected to operate
ethically but that became problematic as well.

The Bar Project moved very slowly and no plans for humanitarian aid
project development were forthcoming. The entire project finally came to
a standstill after I was given the Bank account number of the head of
the Legal Aid Bureau "in case I needed it". I declined to make a
deposit. I reiterated that any funds would be channeled only through
accounts in the projects' name set up for that purpose and hoped I had
somehow misunderstood the meaning of this. Communication with the Bar
waned then stopped, leaving me with clients awaiting adoption through
the Bar. I informed the Embassy of this final development and requested
assistance and liaison with the Ministry to get my clients adoptions
completed and to stop improper baby selling to the highest bidder taking
place in Country 3 . The Embassy committed to make a "demarche" to the
Ministry concerning these allegations. I sent them a letter to deliver
which they said they would They reported that the Ministry heard my
complaints but would not insert itself into any practices of children's
homes. The embassy could not help me with my clients adoptions nor could
they create a law abiding ethical atmosphere but hoped to work toward a
more transparent system in the future when the country was better able
to address these problems itself. The Ministry offered to expedite any
remaining adoptions I could arrange as a courtesy. I was left to
complete the three adoptions I needed to complete in Country 3 with a
Director that I believed was pocketing all donations and legal fees. I
did not want to deal with this man but had no other options in that
country for these clients. I accepted referrals and asked the Embassy to
clear them before I sent the clients to the country because I did not
trust him to be giving lawfully relinquished children. There were many
problems including children being offered and then withdrawn after
parents supposedly reclaimed them. This director kept demanding that we
provide him with a paid vacation for himself and his family to the
United States for one month if we wanted these adoptions to go through.
I told him that I would not send the clients if these demands persisted
and he backed down.

Recently, one family has arrived and he began to harass them about the
request for a trip to the US. They told him this was not going to happen
at their expense as they had a contract for services not free trips.
This director was very angry. The next morning the Director withdrew the
referral. He said that the mother had suddenly appeared and reclaimed
the child but he was unwilling to explain the circumstances of how the
baby had been abandoned for two months only to be reclaimed exactly as
my clients arrived (having already paid for r/t tickets and dossier and
fees) This family had held this child in their arms the night before.
The child's mandatory publication period had been met.

As of this writing the family is going home without their child and does
not wish to attempt to adopt a different child. They are heartbroken.
The Embassy's position is that it is outside its scope to investigate.
This Director has threatened to stop the remaining adoptions if I make
any complaint to the Ministry.

**Country 4-** Our project was initiated in Country 4 and though we have
not encountered corruption, we have encountered major fee increases by
our attorneys there and so the program will be terminated after
completion of a pending adoption as it cannot provide the agreed upon
humanitarian aid under this new fee structure. Without this, an
important goal of the project has failed.

**Country 5-** I was fortunate in Country 5 to partner with a truly
extraordinary Bar Group- of Country 5 . This young bar group immediately
impressed me with their professionalism, dedication to humanitarian
goals and enthusiastic desire for democratic reforms and rule of law.
After meeting them and spending a week planning our project and
experiencing their sincere concern for children's futures, I was secure
that the project would succeed there. I was, however, troubled by
information given me by a consular officer. She indicated that bribery
was routine in adoption and that it might not be realistic to do ethical
"clean" adoptions as we planned. But I was confident that with our
counsel knowing and able to demand their clients' rights under Country 5
law, we would overcome this problem and be able to run a lawful bribe
free program.

I have heard time and again from Country 5's and other Embassies how
little money the foreign Ministry workers make in their official
capacities and how it is inevitable that they will demand bribes in
connection with adoptions to supplement their meager incomes. While I
understand the difficulties that the Embassies have in enforcing foreign
laws, United States laws prohibit the participation in bribery too.

GGCF Clients prepared dossiers and ultimately submitted them. One family
contacted me about a child photolisted on an agency's website. They
wanted to adopt her but learned this agency had a director who was the
subject of dozens of suits and over a hundred complaints in many states.
He had lost his license in another state and opened in a different one
under his wife's name. This family was also concerned because they had
been told such an advertisement of an Country 5 child was illegal. When
they contacted GGCF, I confirmed this was the case.

I informed them that I could not refer them this or indeed any child and
that the only legitimate way to have her referred was via the Country 5
ministry as referrals by agencies were illegal. I suggested they contact
the Ministry to find out how they could lawfully adopt her. The Ministry
affirmed that no referrals may be made by agencies but that if my
clients submitted their dossier and the child had not yet been legally
assigned or adopted, they could adopt her. The child was not adopted and
my clients flew their dossier to Country 5 to initiate her adoption
after months of delays at the Country 5 Embassy in DC where there had
been unusual delays. On arrival they were told she was being "held" for
a facilitator 's client who did not yet have a dossier submitted
notwithstanding that this practice was illegal. The Ministry confirmed
this deal but would not explain why this privilege was being extended to
this facilitator's clients after it had been denied to ours. When we
filed in court to protect our client's rights the Ministry finally
offered another one of our clients a referral. When we refused to
withdraw our legal claim for the other child they withdrew that referral
in retaliation and have never replaced it. None of our clients have been
able to adopt in more than a year. Five other GGCF clients withdrew or
were advised by me to remove themselves from our programs since the
program was not viable under these circumstances.

We have spent almost a year pursuing this case through the courts, the
higher ups in the Ministry and Embassy. The proceedings have been
transparently corrupt with courts refusing to issue reasons for denials
in contravention of law and higher court order. Repeated orders on
appeal that they follow laws have been disregarded by both lower courts
and the Ministry. Higher Officials in the Ministry have refused to
explain the reasons for their practices. Since then complaints from
parents have surfaced of absurdly high demands for money by facilitators
in some cases in order to keep their referrals. The Ministry continues
to give referrals of children to some agencies and facilitators in a
matter of weeks while others have waited over a year and still nothing.
This information was reported to the Embassy. The Ministry has explained
that this particular child was a given to a facilitator to place and she
was part of his exclusive inventory of available children.

The Embassies initial efforts to assist my clients in this case waned
when it became clear that the bottom line was that the Ministry had no
intention of explaining its actions or following its own legal
procedures where "deals" and "understandings" with facilitators were
involved. A now different consular officer reiterated their knowledge of
the "reality" of Country 5 official's salaries and the common practice
of "supplementing" it with those with whom it had understandings. At
that point the Embassy became unresponsive until my clients complained
to their Congressional representatives. They became re-involved with the
goal of seeing "a transparent and lawful adoption process take place in
Country 5 ". The case has been pending for a year as the case that was
subjected to retaliation. The embassy knows the process is neither fair
nor transparent but state they have no ability to force a lawful
operation of law in Country 5 .

I have expended hundreds of hours and my partners have also spent
countless man hours attempting to rectify this wrong and prove that an
ethical adoption can be done without improper influence or disregard for
Country 5 law. We still have NO children home via GGCF in this country
and if the Ministry succeeds, we never will with even the two clients we
still have hanging in there while we fight. Meanwhile other providers
easily bringing home babies for his clients despite the Country 5
knowing he no longer is even licensed. Graham's Gift's dream of a
professional ethical, cost effective, humanitarian minded adoption
agency is over in this country too due to corruption. We've run out of
countries.

Attempts to do the "right thing" by legally but quietly opposing
corruption have failed. My clients have been hurt, I have lost my
business, several years, and a lot of money to corruption. Bringing it
to the attention of appropriate authorities discretely, but then
accepting "there's nothing we can do about it " from those authorities
has proven My choice to act conservatively so as "not to rock the boat"
is enabling corrupt actors to continue. At this juncture, with so much
at stake with Hague, I cannot in good conscience continue to keep my own
counsel with governments showing no intention of cleaning things up
without increased pressure and disclosure.

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