II

106TH CONGRESS

1ST SESSION S. 682

To implement the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 23, 1999

Mr. HELMS (for himself, and Ms. LANDRIEU) introduced the following bill;

which was read twice and referred to the Committee on Foreign Relations

A BILL

To implement the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Intercountry Adoption Convention Implementation Act

6 of 1999’’.

7 (b) TABLE OF CONTENTS.—The table of contents of

8 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Definitions.
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TITLE I—UNITED STATES CENTRAL AUTHORITY

Sec. 101. Performance of central authority functions.

Sec. 102. Authority of the Department of State.

Sec. 103. Responsibilities of the Secretary of State.

Sec. 104. Responsibilities of the Attorney General.

Sec. 105. Annual report on intercountry adoptions.

TITLE II—ACCREDITATION OF PERSONS PROVIDING

INTERCOUNTRY ADOPTION SERVICES

Sec. 201. Eligibility to provide intercountry adoption services.

Sec. 202. Accrediting entities.

Sec. 203. Eligibility for accreditation.

Sec. 204. Oversight of accreditation.

TITLE III—RECOGNITION OF CONVENTION ADOPTIONS IN THE

UNITED STATES

Sec. 301. Adoptions of children immigrating to the United States.

Sec. 302. Amendments of the Immigration and Nationality Act.

Sec. 303. Adoptions of children emigrating from the United States.

Sec. 304. Special rules for certain cases.

Sec. 305. Voiding of adoptions for cause.

Sec. 306. Recognition of Convention adoptions before entry into force of Convention for the United States.

TITLE IV—ADMINISTRATION AND ENFORCEMENT

Sec. 401. Records; privacy provisions.

Sec. 402. Documents of other Convention countries.

Sec. 403. Authorization of appropriations; collection of fees.

Sec. 404. Enforcement.

TITLE V—GENERAL PROVISIONS

Sec. 501. Relation to other laws.

Sec. 502. No private right of action.

Sec. 503. Effective date; transition provisions.

1 SEC. 2. FINDINGS.

2 Congress recognizes—

3 (1) the international character of the Conven4 tion, and

5 (2) the need for uniform interpretation and im6 plementation of the Convention in the United States

7 and abroad,
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1 and therefore finds that enactment of a Federal law gov2 erning intercountry adoptions subject to the Convention

3 is necessary.

4 SEC. 3. DEFINITIONS.

5 In this Act:

6 (1) ACCREDITED PERSON.—The term ‘‘accred7 ited person’’ means a person (including an agency),

8 not organized for profit, that has been accredited in

9 accordance with title II to provide adoption services

10 and to perform other functions under the Conven11 tion.

12 (2) ACCREDITING ENTITY.—The term ‘‘accred13 iting entity’’ means an entity designated under sec14 tion 202(a).

15 (3) ADOPTION SERVICES.—The term ‘‘adoption

16 services’’ means—

17 (A) identifying children for adoption and

18 arranging adoptions;

19 (B) securing necessary documentation of

20 consent to termination of parental rights and to

21 adoption;

22 (C) performing background studies on chil23 dren, home studies on prospective adoptive par24 ents, and reports of such studies;
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1 (D) making determinations of the best in2 terests of the child and the appropriateness of

3 adoptive placement;

4 (E) counseling children and birth and

5 adoptive parents with respect to adoption;

6 (F) engaging in post-placement monitoring

7 of cases until final adoption; and

8 (G) if necessary because of disruption in

9 the adoption process, assuming custody of a

10 child, and providing child care or other social

11 services, pending an alternative placement of

12 the child.

13 (4) AGENCY.—The term ‘‘agency’’ means any

14 public entity or private corporation, partnership, or15 ganization, or other association.

16 (5) ATTORNEY GENERAL.—The term ‘‘Attorney

17 General’’ means the Attorney General, acting

18 through the Commissioner of Immigration and Nat19 uralization.

20 (6) BIRTH PARENT.—The term ‘‘birth parent’’

21 means the biological mother and, where applicable

22 under the law of the place of birth of the child, the

23 biological father of the child who is the subject of an

24 adoption.
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1 (7) CENTRAL AUTHORITY.—The term ‘‘central

2 authority’’ means the entity designated by any Con3 vention country under Article 6(1) of the Convention

4 as having primary responsibility for the discharge of

5 the obligations of that country under the Conven6 tion.

7 (8) CENTRAL AUTHORITY FUNCTION.—The

8 term ‘‘central authority function’’ means any duty

9 required to be carried out by a central authority

10 under chapter III or IV of the Convention.

11 (9) CONVENTION.—The term ‘‘Convention’’

12 means the Convention on Protection of Children and

13 Co-operation in Respect of Intercountry Adoption,

14 done at The Hague on May 29, 1993.

15 (10) CONVENTION ADOPTION.—The term ‘‘Con16 vention adoption’’ means, upon entry into force of

17 the Convention in the United States—

18 (A) an adoption (or prospective adoption)

19 of a child habitually resident in a foreign coun20 try party to the Convention by a United States

21 citizen; or

22 (B) an adoption (or prospective adoption)

23 of a child habitually resident in the United

24 States by a person or persons residing in an25 other Convention country.
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1 (11) CONVENTION ADOPTION RECORD.—The

2 term ‘‘Convention adoption record’’ means any item,

3 collection, or grouping of information, including any

4 index, contained in an electronic or physical docu5 ment, an electronic collection of data, a photograph,

6 an audio or video tape, or any other information

7 storage medium of any type whatever that contains

8 information about a specific past, current, or pro9 spective Convention adoption (regardless of whether

10 a final adoption resulted) and that has been identi11 fied and retained in accordance with section 401(a)

12 by the Secretary of State or the Attorney General.

13 (12) CONVENTION COUNTRY.—The term ‘‘Con14 vention country’’ means a country party to the Con15 vention.

16 (13) OTHER CONVENTION COUNTRY.—The

17 term ‘‘other Convention country’’ means a Conven18 tion country other than the United States.

19 (14) PERSON.—The term ‘‘person’’ has the

20 meaning given the term in section 1 of title 1,

21 United States Code.

22 (15) PERSON WITH AN OWNERSHIP OR CON23 TROL INTEREST.—The term ‘‘person with an owner24 ship or control interest’’ has the meaning given such
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1 term in section 1124(a)(3) of the Social Security Act

2 (42 U.S.C. 1320a–3).

3 (16) STATE.—The term ‘‘State’’ means the 50

4 States, the District of Columbia, the Commonwealth

5 of Puerto Rico, the Commonwealth of the Northern

6 Mariana Islands, Guam, and the Virgin Islands.

7 TITLE I—UNITED STATES

8 CENTRAL AUTHORITY

9 SEC. 101. PERFORMANCE OF CENTRAL AUTHORITY FUNC10 TIONS.

11 All central authority functions of the United States

12 shall be carried out by the Department of State and other

13 officials of the United States specified in this Act.

14 SEC. 102. AUTHORITY OF THE DEPARTMENT OF STATE.

15 (a) IN GENERAL.—Except as otherwise provided in

16 this Act, for purposes of the Convention—

17 (1) the Department of State shall serve as the

18 central authority of the United States; and

19 (2) the Secretary of State shall serve as the

20 head of the central authority of the United States.

21 (b) STATE DEPARTMENT PERSONNEL PERFORMING

22 CENTRAL AUTHORITY FUNCTIONS.—All personnel of the

23 Department of State performing central authority func24 tions in a professional capacity shall have 3 to 5 years
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1 of personal or professional experience in international

2 adoptions.

3 (c) AUTHORITY TO ISSUE REGULATIONS.—Except as

4 otherwise provided in this Act, the Secretary of State may

5 prescribe such regulations as may be necessary to carry

6 out central authority functions on behalf of the United

7 States.

8 SEC. 103. RESPONSIBILITIES OF THE SECRETARY OF

9 STATE.

10 (a) LIAISON RESPONSIBILITIES.—The Secretary of

11 State shall have primary responsibility for—

12 (1) liaison with the central authorities of other

13 Convention countries; and

14 (2) the coordination of activities under the Con15 vention by persons subject to the jurisdiction of the

16 United States.

17 (b) INFORMATION EXCHANGE.—The Secretary of

18 State shall be responsible for—

19 (1) providing the central authorities of other

20 Convention countries with information concerning—

21 (A) persons accredited under title II, per22 sons whose accreditation is suspended or can23 celed, and persons temporarily or permanently

24 debarred from accreditation;
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1 (B) Federal and State laws relevant to im2 plementing the Convention; and

3 (C) any other matters necessary and ap4 propriate for implementation of the Convention;

5 (2) providing Federal agencies, State courts,

6 and accredited persons with an identification of Con7 vention countries and persons authorized to perform

8 functions under the Convention in each such coun9 try;

10 (3) facilitating the transmittal of other appro11 priate information to, and among, central authori12 ties, Federal and State agencies (including State

13 courts), and accredited persons; and

14 (4) taking other appropriate actions necessary

15 to implement the Convention.

16 (c) ADDITIONAL RESPONSIBILITIES.—The Secretary

17 of State—

18 (1) shall monitor individual Convention adop19 tion cases involving United States citizens;

20 (2) may facilitate interactions between such

21 citizens and officials of other Convention countries

22 on matters relating to the Convention in any case in

23 which an accredited person is unwilling or unable to

24 provide such facilitation; and
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1 (3) may provide any other appropriate assist2 ance in other cases.

3 (d) ESTABLISHMENT OF REGISTRY.—The Secretary

4 of State and the Attorney General shall jointly establish

5 a case registry on—

6 (1) all adoptions involving immigration into the

7 United States, regardless of whether the adoption

8 occurs under the Convention; and

9 (2) all adoptions involving emigration of the

10 child from the United States to any other Conven11 tion country.

12 Such registry shall permit tracking of pending cases and

13 retrieval of information on both pending and closed cases.

14 SEC. 104. RESPONSIBILITIES OF THE ATTORNEY GENERAL.

15 In addition to such other responsibilities as are spe16 cifically conferred upon the Attorney General by this Act,

17 the central authority functions specified in Article 14 of

18 the Convention (relating to the filing of applications by

19 prospective adoptive parents to the central authority of

20 their country of residence) shall be performed by the At21 torney General.

22 SEC. 105. ANNUAL REPORT ON INTERCOUNTRY ADOP23 TIONS.

24 (a) REPORTS REQUIRED.—Beginning one year after

25 the date of enactment of this Act, and every year there-
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1 after, the Secretary of State shall submit a report to Con2 gress describing the activities of the central authority of

3 the United States under this Act during the preceding

4 year.

5 (b) REPORT ELEMENTS.—Each report under sub6 section (a) shall set forth with respect to the year con7 cerned, the following:

8 (1) The number of adoptions involving immi9 gration to the United States, regardless of whether

10 the adoption occurred under the Convention, includ11 ing the country from which each child emigrated and

12 the State to which each child immigrated.

13 (2) The number of adoptions under the Conven14 tion, including the country from which each child

15 emigrated and the State to which each child immi16 grated.

17 (3) The number of intercountry adoptions that

18 were disrupted, including the country from which

19 the child emigrated, the age of the child, the date of

20 the adoption of the child, the reason for the disrup21 tion, and the resolution of the disruption.

22 (4) The names of the persons who possessed ac23 creditation to perform intercountry adoptions.
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1 (5) The names of the persons who were

2 debarred from performing intercountry adoptions,

3 and the reasons for the debarrment.

4 (6) The average time required for completion of

5 an intercountry adoption.

6 (7) The number of intercountry adoptions that

7 were completed in the United States, and the num8 ber of adoptions that were completed in each foreign

9 country from which children subject to such adop10 tions emigrated.

11 (8) The number of intercountry adoptions to

12 the United States that were found to be fraudulent.

13 (9) The average adoption fee for intercountry

14 adoptions to the United States set forth by country.

15 (10) The average adoption fee for intercountry

16 adoptions from the United States set forth by coun17 try.

18 (11) The average fee for accreditation of per19 sons engaging in the provision of intercountry adop20 tion services.
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1 TITLE II—ACCREDITATION OF

2 PERSONS PROVIDING INTER3 COUNTRY ADOPTION SERV4 ICES

5 SEC. 201. ELIGIBILITY TO PROVIDE INTERCOUNTRY ADOP6 TION SERVICES.

7 (a) IN GENERAL.—Except as otherwise provided in

8 this title, no person may offer or provide adoption services

9 in connection with a Convention adoption unless that

10 person—

11 (1) is accredited by an accrediting entity in ac12 cordance with this title; or

13 (2) is providing such services through or under

14 the supervision and responsibility of an accredited

15 person.

16 (b) EXCEPTIONS.—Subsection (a) shall not apply to

17 any of the following persons:

18 (1) CERTAIN SOCIAL WORK PROFESSIONALS

19 AND ORGANIZATIONS.—A social work professional or

20 organization conducting (and reporting on) home

21 studies on prospective adoptive parents or

22 background studies on children in connection with

23 adoptions, but not arranging or otherwise facili24 tating adoptions subject to the Convention.
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1 (2) ENTITIES PROVIDING CHILD WELFARE

2 SERVICES.—A public or private entity intervening in

3 a Convention adoption to provide child welfare serv4 ices, but not itself arranging or facilitating the adop5 tion.

6 (3) ATTORNEYS PROVIDING LEGAL SERVICES.—

7 An attorney providing legal services in connection

8 with a Convention adoption, but not arranging, ei9 ther directly or through agents, the adoption or oth10 erwise providing adoption services in connection with

11 the adoption.

12 (4) PROSPECTIVE ADOPTIVE PARENTS ACTING

13 ON OWN BEHALF.—Prospective adoptive parents

14 when acting on their own behalf, if they are per15 mitted to do so under the law of the State in which

16 they reside.

17 SEC. 202. ACCREDITING ENTITIES.

18 (a) IN GENERAL.—

19 (1) DESIGNATIONS OF ENTITIES.—The Sec20 retary of State shall designate as accrediting enti21 ties, and enter into agreements with, no more than

22 five nonprofit private entities that—

23 (A) have experience and expertise in devel24 oping and administering international adoption
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1 services and standards for entities providing

2 child welfare services; and

3 (B) meet such other criteria as the Sec4 retary may by regulation establish.

5 (2) LIMITATION.—An accrediting entity shall

6 undertake an accreditation strictly for intercountry

7 adoption, unless a person seeks additional program

8 accreditation.

9 (b) RESPONSIBILITIES OF ACCREDITING ENTI10 TIES.—The responsibilities of accrediting entities shall in11 clude the following:

12 (1) ACCREDITATION.—Accreditation of persons

13 to perform functions under the Convention, subject

14 to section 203.

15 (2) OVERSIGHT.—Ongoing monitoring of the

16 compliance by accredited persons with applicable re17 quirements, including review of complaints against

18 such persons in accordance with procedures estab19 lished by this Act and by such accrediting entity and

20 approved by the Secretary of State.

21 (3) ENFORCEMENT.—Imposition of administra22 tive remedies, including requirements for corrective

23 action, and sanctions for noncompliance, including

24 refusal to renew, or the suspension or cancellation

25 of, accreditation.
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1 (4) DATA, RECORDS, AND REPORTS.—Collecting

2 data, maintaining records, and making reports to

3 the Secretary of State, State courts, and other enti4 ties (including reports on persons granted or denied

5 accreditation).

6 (c) REMEDIES FOR ACCREDITING ENTITY’S AD7 VERSE ACTION.—

8 (1) IN GENERAL.—In any case where an ac9 crediting entity denies, suspends, or cancels the ac10 creditation of a person under this title, mandates

11 corrective action, or takes other adverse action, the

12 accrediting entity shall specify the deficiencies on

13 which the adverse action was based, and paragraphs

14 (2), (3), and (4) shall apply with respect to rem15 edies.

16 (2) CORRECTION OF DEFICIENCY AND RE17 APPLICATION.—The person that is the subject of the

18 adverse action shall be permitted to reapply for ac19 creditation (or to petition for termination of any

20 other sanction applied) upon demonstrating to the

21 satisfaction of the accrediting entity that the defi22 ciencies have been corrected.

23 (3) JUDICIAL REVIEW.—The person that is the

24 subject of the adverse action may petition the

25 United States district court in the judicial district in
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1 which such person resides to set aside the action,

2 but only upon clear and convincing proof that the

3 action was not supported by substantial evidence or

4 that the accrediting entity abused its discretion.

5 (4) NO FEDERAL ADMINISTRATIVE REVIEW.—

6 An adverse action by the accrediting entity shall not

7 be reviewable by the Secretary of State or any other

8 Federal agency or administrative entity.

9 (d) FEES.—

10 (1) AUTHORITY TO ASSESS.—Accrediting enti11 ties are authorized to assess fees in amounts ap12 proved by the Secretary of State against persons

13 seeking or maintaining accreditation for the pur14 poses of intercountry adoptions.

15 (2) FEE AMOUNTS.—The Secretary of State

16 may approve fees to be assessed under paragraph

17 (1) that do not exceed the amount estimated to be

18 necessary to cover all direct or indirect costs of ac19 creditation and ongoing oversight by the accrediting

20 entity with regard to Convention cases. Fees estab21 lished under this section shall reflect, to the max22 imum extent practicable, the extent to which overall

23 costs of accrediting persons varies in relation to the

24 volume of Convention adoption cases a person han25 dles.
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1 (3) LIMITATION.—An accrediting entity shall

2 not provide discounted fees for certain persons for

3 accreditation for purposes of intercountry adoption.

4 SEC. 203. ELIGIBILITY FOR ACCREDITATION.

5 (a) ESTABLISHMENT OF STANDARDS.—

6 (1) ISSUANCE OF REGULATIONS.—The Sec7 retary of State shall establish by regulation stand8 ards and procedures to be used by accrediting enti9 ties for the accreditation of persons for the purpose

10 of arranging Convention adoptions.

11 (2) STANDARD-SETTING PROCESS.—In estab12 lishing standards and procedures under this section,

13 the Secretary of State—

14 (A) shall consider the views of individuals

15 and entities with interest and expertise in inter16 national adoptions and family social services,

17 including public and private entities with expe18 rience in licensing and accrediting adoption

19 agencies; and

20 (B) may adopt, after opportunity for pub21 lic comment, all or part of any standards or

22 procedures developed or proposed by such indi23 viduals or entities.

24 (b) REQUIREMENTS FOR ACCREDITATION.—
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1 (1) CONDITIONS FOR ACCREDITATION.—Except

2 as the Secretary of State may by regulation other3 wise provide, each person seeking accreditation

4 under this title with respect to intercountry adoption

5 services shall satisfy the following requirements:

6 (A) SPECIFIC REQUIREMENTS.—To agree

7 as follows:

8 (i) To provide persons who would be

9 the adoptive parents of a child in a pro10 spective Convention adoption a copy in

11 English of the medical records of the child

12 not later than the earlier of 2 weeks before

13 the adoption or the date on which the per14 sons travel to a foreign country to finalize

15 the adoption.

16 (ii) To provide the persons a training

17 program that includes at least 6 weeks of

18 counseling and guidance before the parents

19 travel to a foreign country to finalize the

20 adoption.

21 (iii) To employ personnel providing

22 intercountry adoption services on a fee-for23 service basis rather than on a contingent24 arrangement basis.
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1 (iv) To have in force adequate liability

2 insurance for professional negligence and

3 any other insurance that the Secretary

4 considers appropriate.

5 (v) To permit open examination of the

6 person’s practices, including the disruption

7 rates of intercountry adoptions facilitated

8 by the person and the fees charged by the

9 person for intercountry adoptions.

10 (B) CAPACITY TO PERFORM ALL ASSIGNED

11 FUNCTIONS.—To have, either directly or

12 through arrangements with other qualified per13 sons, qualified personnel, financial resources, an

14 organizational structure, and appropriate proce15 dures sufficient to enable it to perform, in a

16 manner consistent with applicable standards, all

17 functions under the Convention which it is seek18 ing authority to perform in accordance with this

19 Act (including the counseling of individuals in20 volved in intercountry adoptions and the as21 sumption of custodial and financial responsi22 bility for children in cases where a placement

23 disrupts before final adoption).

24 (C) UTILIZATION OF SOCIAL SERVICE PRO25 FESSIONALS.—To have procedures designed to
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1 ensure that social service functions requiring

2 the application of clinical skills and judgment

3 are performed only by professionals with appro4 priate qualifications and credentials.

5 (D) RECORDS, REPORTS, AND INFORMA6 TION MATTERS.—To provide for the mainte7 nance of such records and to make such reports

8 as may be required by the Secretary of State

9 and the designated accrediting entity; to cooper10 ate with reviews, inspections, and audits; to

11 safeguard sensitive individual information; and

12 to comply with other requirements concerning

13 information management necessary to ensure

14 compliance with the Convention, this Act, and

15 any other applicable laws.

16 (E) COMPLIANCE WITH CONVENTION.—To

17 establish adequate measures to comply (and to

18 ensure compliance of their agents and clients)

19 with the Convention, this Act, and all other ap20 plicable laws, particularly with provisions con21 cerning fraud, improper inducement, and simi22 larly egregious acts.

23 (2) ADDITIONAL CONDITIONS FOR ACCREDITA24 TION.—No person shall be accredited under this title

25 unless such person is a private organization, not or-
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1 ganized for profit, and licensed to provide adoption

2 services in at least one State.

3 SEC. 204. OVERSIGHT OF ACCREDITATION.

4 (a) OVERSIGHT OF ACCREDITING ENTITIES.—The

5 Secretary of State shall—

6 (1) monitor each accrediting entity’s perform7 ance of its functions under section 202 and its com8 pliance with the requirements of the Convention, this

9 Act, other applicable laws, and implementing regula10 tions; and

11 (2) suspend or cancel the designation of an en12 tity found to be substantially out of compliance with

13 the Convention, this Act, other applicable laws, or

14 implementing regulations.

15 (b) DEBARMENT.—

16 (1) SECRETARY’S AUTHORITY.—The Secretary

17 of State may, on the Secretary’s own initiative or

18 upon request by an accrediting entity, order the tem19 porary or permanent debarment of a person from ac20 creditation for purposes of intercountry adoptions if

21 there is no possibility for timely mediation and—

22 (A) there is substantial evidence that the

23 person is out of compliance with applicable re24 quirements;
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1 (B) there has been a pattern of serious,

2 willful, or grossly negligent failures to comply

3 or other aggravating circumstances indicating

4 that renewal of accreditation would not be in

5 the best interests of the children and families

6 concerned; or

7 (C) actions by a person impact adversely

8 important national interests of the United

9 States.

10 (2) PERIOD OF DEBARMENT.—The debarment

11 order of the Secretary of State shall state whether

12 the debarment is temporary or permanent. If the de13 barment is temporary, the Secretary shall specify a

14 date, not earlier than 3 years after the date of the

15 order, on which date the person may apply to the

16 Secretary who ordered the debarment for withdrawal

17 of the debarment.

18 (3) EFFECT OF DEBARMENT.—In the case of a

19 person that has been debarred pursuant to this sub20 section, the accrediting entity may take the cir21 cumstances of such debarment into account in con22 sidering any subsequent application for accreditation

23 of the person or of any other person in which the

24 person has an ownership or control interest, notwith25 standing that the period of debarment has elapsed.
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1 (c) JUDICIAL REVIEW OF SECRETARY’S DECI2 SIONS.—

3 (1) REVIEW BY FEDERAL DISTRICT COURT.—A

4 person (other than a prospective adoptive parent,

5 person, or accrediting entity adversely affected by a

6 final determination of the Secretary of State under

7 this title with respect to the designation of an ac8 crediting entity, or the accreditation of a person)

9 may obtain review of such determination by the

10 United States District Court for the District of Co11 lumbia, or in the United States district court in the

12 judicial district in which such person or accrediting

13 entity resides.

14 (2) STANDARD OF REVIEW.—A determination

15 by the Secretary of State under paragraph (1) may

16 be set aside only if the person adversely affected by

17 the Secretary’s final determination presents clear

18 and convincing proof of abuse of discretion by the

19 Secretary.

20 (3) PRECLUSION OF JUDICIAL REVIEW OF SEC21 RETARY OF STATE DETERMINATIONS.—A determina22 tion by the Secretary of State on foreign policy

23 grounds is not subject to judicial review.
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1 TITLE III—RECOGNITION OF

2 CONVENTION ADOPTIONS IN

3 THE UNITED STATES

4 SEC. 301. ADOPTIONS OF CHILDREN IMMIGRATING TO THE

5 UNITED STATES.

6 (a) LEGAL EFFECT OF ADOPTIONS FINALIZED IN

7 THE UNITED STATES.—

8 (1) ISSUANCE OF CERTIFICATES BY THE SEC9 RETARY OF STATE.—Pursuant to Article 23 of the

10 Convention, the Secretary of State shall, with re11 spect to each Convention adoption, issue a certificate

12 to the adoptive citizen parent domiciled in the

13 United States that the adoption has been granted

14 or, in the case of a prospective adoptive citizen par15 ent, that legal custody of the child has been granted

16 to the citizen parent for purposes of emigration and

17 adoption, pursuant to the Convention and this Act,

18 if the Secretary—

19 (A) receives appropriate notification from

20 the central authority of such child’s country of

21 origin; and

22 (B) has verified that the requirements of

23 this Act have been met.

24 (2) LEGAL EFFECT OF CERTIFICATES.—If ap25 pended to an original adoption decree, the certificate
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1 described in paragraph (1) shall be treated by Fed2 eral and State agencies, courts, and other public and

3 private persons and entities as conclusive evidence of

4 the facts certified therein, except as provided in sec5 tion 305, and shall constitute the certification re6 quired by section 204(d)(2) of the Immigration and

7 Nationality Act, as amended by this Act.

8 (b) LEGAL EFFECT OF ADOPTIONS FINALIZED IN

9 OTHER CONVENTION COUNTRIES.—The final adoption in

10 any other Convention country, certified by the Secretary

11 of State pursuant to subsection (a) or section 303(d) of

12 this Act, shall be recognized as a final, valid adoption for

13 the purposes of all Federal, State, and local laws of the

14 United States, and shall be accorded the same legal effect

15 as the final adoption of a child in the State where such

16 United States citizens reside or are domiciled.

17 (c) CONDITION ON FINALIZATION OF CONVENTION

18 ADOPTIONS BY STATE COURTS.—In the case of a child

19 who has been admitted to the United States from any

20 other Convention country for the purpose of adoption, a

21 State court shall not have authority to issue an order de22 claring the adoption final unless the Secretary of State

23 has issued the certificate described in subsection (b).
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1 SEC. 302. AMENDMENTS OF THE IMMIGRATION AND NA2 TIONALITY ACT.

3 (a) DEFINITION OF ‘‘CHILD’’.—Section 101(b)(1) of

4 the Immigration and Nationality Act (8 U.S.C.

5 1101(b)(1)) is amended—

6 (1) by striking ‘‘or’’ at the end of subparagraph

7 (E);

8 (2) by striking the period at the end of sub9 paragraph (F) and inserting ‘‘; or’’;

10 (3) in subparagraphs (E) and (F), by inserting

11 ‘‘except as provided in subparagraph (G),’’ before ‘‘a

12 child’’ each place it appears; and

13 (4) by adding after subparagraph (F) the fol14 lowing new subparagraph:

15 ‘‘(G) a child, under the age of sixteen at

16 the time a petition is filed on the child’s behalf

17 to accord a classification as an immediate rel18 ative under section 201(b), who has been adopt19 ed in a foreign country that is a party to the

20 Convention on Protection of Children and Co21 operation in Respect of Intercountry Adoption,

22 or who is emigrating from such a foreign coun23 try to be adopted in the United States by at

24 least one United States citizen and the citizen’s

25 spouse jointly, or by an unmarried United

26 States citizen at least 25 years of age, if—
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1 ‘‘(i) the Attorney General is satisfied

2 that proper care will be furnished the child

3 if admitted to the United States,

4 ‘‘(ii) in a case in which required by

5 the country of the child’s habitual resi6 dence, the child’s birth parents, or other

7 persons or institutions that retain legal

8 custody of the child, have freely given their

9 written irrevocable consent to the termi10 nation of their relationship with the child,

11 ‘‘(iii) in the case of a child who has

12 not been adopted, the competent authority

13 of the foreign State has approved the

14 child’s emigration to the United States for

15 the purpose of adoption by the prospective

16 adoptive parents,

17 ‘‘(iv) the child is not the grandchild,

18 niece, nephew, brother, sister, aunt, uncle,

19 or first cousin of any of the adopting par20 ents, unless—

21 ‘‘(I) the child has no living moth22 er because of the death or disappear23 ance of, abandonment or desertion by,

24 or separation from or loss of the

25 child’s mother; or
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1 ‘‘(II) the father is unknown, or

2 was not married to the child’s mother

3 on the date of the child’s birth, or is

4 incapable of providing the proper care

5 for the child and has in writing irrev6 ocably released the child for emigra7 tion and adoption, and

8 ‘‘(v) the prospective adoptive parent

9 or married husband and wife have com10 plied with any adoption requirements of

11 the child’s proposed State of residence,

12 except, that no birth parent or former adoptive par13 ent of any such adopted child shall thereafter, by

14 virtue of such parentage, be accorded any right,

15 privilege, or status under this Act.’’.

16 (b) APPROVAL OF PETITIONS.—Section 204(d) of the

17 Immigration and Nationality Act (8 U.S.C. 1154(d)) is

18 amended—

19 (1) by striking ‘‘(d)’’ and inserting ‘‘(d)(1)’’;

20 and

21 (2) by adding at the end the following new

22 paragraph:

23 ‘‘(2) No petition may be approved under subsection

24 (a) on behalf of an alien child who seeks to be accorded

25 immediate relative status as a child defined under section
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1 101(b)(1)(G), unless the Secretary of State has certified

2 to the Attorney General that the central authority of the

3 child’s country of origin has notified the United States

4 Central Authority under the Convention on Protection of

5 Children and Co-operation in Respect of Intercountry

6 Adoption done at The Hague on May 29, 1993, that a

7 United States citizen domiciled in the United States has

8 effected final adoption of the child, or has been granted

9 custody of the child for the purpose of emigration and

10 adoption, in accordance with the Convention and the

11 Intercountry Adoption Act.’’.

12 (c) CONFORMING AMENDMENT.—Section 101(b)(2)

13 of that Act (8 U.S.C. 1101(b)(2)) is amended by inserting

14 ‘‘and paragraph (1)(G) (other than for purposes of the

15 exception therein)’’ after ‘‘second proviso therein)’’.

16 (d) EFFECTIVE DATE.—The amendments made by

17 this section shall apply with respect to petitions for classi18 fication under section 204 of the Immigration and Nation19 ality Act filed on or after the date of enactment of this

20 Act.

21 SEC. 303. ADOPTIONS OF CHILDREN EMIGRATING FROM

22 THE UNITED STATES.

23 (a) COVERED CASES.—This section shall apply in any

24 case in which a child residing in the United States is

25 sought for adoption in any other Convention country.
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1 (b) RESPONSIBILITIES OF ACCREDITED PERSONS.—

2 In any case described in subsection (a), the accredited per3 son that is providing adoption services in such a case, or

4 the prospective adoptive parents acting on their own be5 half, if permitted by the laws of the Convention country

6 in which they reside and the laws of the State in which

7 the child resides, shall have the following responsibilities:

8 (1) Provide a written documentation of the fol9 lowing:

10 (A) A background study on the child that

11 meets the standards of the State court with ju12 risdiction over the child has been completed.

13 (B) The child will be adopted by a married

14 man and woman.

15 (C) Twelve months have elapsed since the

16 person made efforts to place the child in the

17 United States.

18 (D) A determination has been made, in ac19 cordance with section 107 of Public Law 105–

20 89 that the child cannot be placed in the

21 United States.

22 (E) A determination has been made that

23 placement with the prospective parents is in the

24 best interests of the child.
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1 (2) Furnish to State courts with the jurisdic2 tion over adoption cases described in subsection (a)

3 the following information and documents:

4 (A) Documentation of the matters de5 scribed in paragraph (1).

6 (B) The background report (home study)

7 on the prospective adoptive parent or parents

8 prepared in accordance with the laws of the re9 ceiving country.

10 (C) A background report compatible with

11 the laws of the State with jurisdiction.

12 (D) A declaration by the central authority

13 (or other competent authority) of the receiving

14 country—

15 (i) that the child will be permitted to

16 enter and reside permanently, or on the

17 same basis as the adopting parent, in the

18 receiving country; and

19 (ii) that the central authority or other

20 competent authority of the receiving coun21 try consents to the adoption, if such con22 sent is necessary under its laws.

23 (3) Furnish to the Secretary of State—
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1 (A) official copies of State court orders

2 certifying the final adoption or grant of custody

3 for the purpose of adoption;

4 (B) the information and documents de5 scribed in paragraph (2); and

6 (C) any other information concerning the

7 case required by the Secretary of State to per8 form the functions specified in subsection (d) or

9 otherwise to carry out its responsibilities under

10 the Convention.

11 (c) CONDITIONS ON STATE COURT ORDERS.—An

12 order by a State court certifying an adoption as final or

13 granting custody for the purpose of adoption in a case de14 scribed in subsection (a) shall not be recognized by the

15 Secretary of State or the Attorney General for purposes

16 of intercountry adoption unless the court—

17 (1) has received and verified to the extent it

18 may find necessary—

19 (A) the information and documentation

20 specified in section (b)(2); and

21 (B) satisfactory evidence that the require22 ments of Article 4 and Articles 15 through 21

23 of the Convention have been satisfied; and

24 (2) has determined that the adoptive placement

25 is in the child’s best interests.
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1 (d) RESPONSIBILITY OF THE SECRETARY OF

2 STATE.—In each case described in subsection (a), the Sec3 retary of State, upon receipt and verification as necessary

4 of the information and documents described in subsection

5 (b)(3), shall issue, as applicable, an official certification

6 that the child has been adopted or a declaration that cus7 tody for purposes of adoption has been granted, in accord8 ance with the Convention and this Act.

9 (e) REQUIREMENTS UNDER STATE LAW.—In cases

10 described in subsection (a), States may impose additional

11 responsibilities and requirements, not inconsistent with

12 the provisions of this section, upon accredited persons and

13 prospective adoptive parents acting on their own behalf.

14 SEC. 304. SPECIAL RULES FOR CERTAIN CASES.

15 To the extent consistent with the Convention, the

16 Secretary of State shall establish by regulation—

17 (1) alternative procedures for the adoption of

18 children by individuals related to them by blood or

19 marriage; and

20 (2) procedures permitting exceptions to applica21 ble requirements, and waiving penalties for non22 compliance, in the case of unintentional or harmless

23 failures to comply with the requirements of the Con24 vention, this Act, or implementing regulations issued

25 under this Act.
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1 SEC. 305. VOIDING OF ADOPTIONS FOR CAUSE.

2 (a) VOIDING ADOPTIONS BY STATE COURTS.—In ad3 dition to any remedies available under State law, a final

4 decree entered with respect to a Convention adoption may

5 be vacated by a State court if—

6 (1) the decree was granted by a State court;

7 (2) the court finds clear and convincing evi8 dence that—

9 (A) the consent of a birth parent or, in the

10 absence thereof, the consent of a biological rel11 ative if required by State law, to termination of

12 parental rights or to the adoption was not ob13 tained, or was obtained as a result of fraud, du14 ress, or improper inducement; or

15 (B) consent of an adoptive parent to the

16 adoption was obtained by fraud which such par17 ent did not and could not reasonably have been

18 expected to discover;

19 (3) voiding the adoption is in the best interests

20 of the child, taking into consideration the wishes of

21 the child as appropriate given his or her age;

22 (4) less than two years have passed since the

23 adoptive parents obtained custody of the child; and

24 (5) the adoptive parents are afforded an oppor25 tunity to be heard in the proceeding.
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1 (b) RECOGNITION OF ANY OTHER CONVENTION

2 COUNTRY’S PROCEEDING VACATING ADOPTIONS COV3 ERED BY THE CONVENTION.—Whenever the competent

4 authorities of any other Convention country notify the

5 Secretary of State that—

6 (1) the authorities have vacated an adoption de7 cree originally made in that country pursuant to the

8 Convention; and

9 (2) the decree has been vacated in accordance

10 with the standards established in paragraphs (2)

11 through (5) of subsection (a),

12 the decision to void such a decree shall be recognized as

13 valid and given full effect in the United States.

14 (c) VOIDING OF ADOPTION NOT VOIDING CHILD’s

15 NATURALIZATION.—If a court of competent jurisdiction

16 voids an adoption decree in accordance with subsection (a)

17 or (b), such action does not void or prohibit the naturaliza18 tion of the child as a citizen of the United States. Nothing

19 in this subsection limits the Attorney General’s authority

20 under title III of the Immigration and Nationality Act to

21 revoke the naturalization of such a child or to limit the

22 Attorney General’s discretion to consider a finding of fact

23 by a State court that is relevant to such a determination.
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1 SEC. 306. RECOGNITION OF CONVENTION ADOPTIONS BE2 FORE ENTRY INTO FORCE OF CONVENTION

3 FOR THE UNITED STATES.

4 Subject to Article 24 of the Convention, any adoption

5 concluded between two Convention countries that satisfies

6 the requirements of Article 23 of the Convention and that

7 became final before the date of entry into force of the Con8 vention for the United States shall be recognized there9 after in the United States and given full effect. Such rec10 ognition shall include the specific effects described in Arti11 cle 26 of the Convention.

12 TITLE IV—ADMINISTRATION

13 AND ENFORCEMENT

14 SEC. 401. RECORDS; PRIVACY PROVISIONS.

15 (a) MAINTENANCE OF CONVENTION ADOPTION

16 RECORDS.—The Secretary of State and the Attorney Gen17 eral shall establish procedures consistent with the require18 ments of Articles 30 and 31 of the Convention for the

19 retention and identification of Convention adoption

20 records.

21 (b) DISCLOSURE OF AND ACCESS TO IDENTIFYING

22 INFORMATION.—

23 (1) CONSENT REQUIRED.—Except as provided

24 in subsection (d), identifying information contained

25 in Convention adoption records shall not be dis26 closed.
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1 (2) APPLICATION OF PRIVACY ACT.—

2 (A) An individual, or an individual’s parent

3 or guardian, who would otherwise have a right

4 to access any Convention adoption record pur5 suant to section 552a of title 5, United States

6 Code, shall have such right with respect to iden7 tifying information in such a record only to the

8 extent that such right is not restricted by this

9 section.

10 (B) Disclosure of identifying information

11 in any Convention adoption record shall be sub12 ject to any restrictions that may be imposed by

13 section 552a of title 5, United States Code, and

14 shall also be subject to any restrictions imposed

15 by this section.

16 (3) NO DISCLOSURE TO CHILD UNDER 18.—A

17 child who is the subject of a Convention adoption

18 record shall not be afforded access to identifying in19 formation in such record, and such information shall

20 not be disclosed to such child, unless the child has

21 reached the age of 18 years.

22 (c) FREEDOM OF INFORMATION ACT EXEMPTION.—

23 Information contained in records of the Department of

24 State and the Immigration and Naturalization Service re25 lating to adoption cases subject to the Convention shall
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1 not be disclosed to any person pursuant to section 552

2 of title 5, United States Code.

3 (d) DISCLOSURE FOR PURPOSES OF ADMINISTRA4 TION OF THE CONVENTION.—Information in Convention

5 adoption records may be disclosed by the Department of

6 State, any official of the United States exercising central

7 authority functions, any accredited person if necessary to

8 administer the Convention or this Act.

9 (e) IDENTIFYING INFORMATION DEFINED.—In this

10 section, the term ‘‘identifying information’’ means any in11 formation contained in an adoption record other than in12 formation relating to the health, social, or genetic

13 background of the child, and which does not specifically

14 identify the child, as prescribed by regulation by the Sec15 retary of Health and Human Services, in consultation with

16 the Secretary of State and the Attorney General.

17 SEC. 402. DOCUMENTS OF OTHER CONVENTION COUN18 TRIES.

19 Documents originating in any other Convention coun20 try and related to a Convention adoption case shall require

21 no authentication or legalization in order to be admissible

22 in any Federal, State, or local court in the United States,

23 unless a specific and supported claim is made that the doc24 uments are false, have been altered, or are otherwise unre25 liable.
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1 SEC. 403. AUTHORIZATION OF APPROPRIATIONS; COLLEC2 TION OF FEES.

3 (a) AUTHORIZATION OF APPROPRIATIONS.—

4 (1) IN GENERAL.—There are authorized to be

5 appropriated such sums as may be necessary to

6 agencies of the Federal Government implementing

7 the Convention and the provisions of this Act.

8 (2) AVAILABILITY OF FUNDS.—Amounts appro9 priated pursuant to paragraph (1) are authorized to

10 remain available until expended.

11 (b) ASSESSMENT OF FEES.—

12 (1) The Secretary of State may charge a fee

13 prescribed by regulation to cover the costs of new or

14 enhanced services that will be undertaken by the De15 partment of State to meet the requirements of this

16 Act.

17 (2) Fees collected under paragraph (1) shall be

18 deposited as an offsetting collection to any Depart19 ment of State appropriation to recover the costs of

20 providing such services.

21 (3) The provisions of the Act of August 18,

22 1856 (Revised Statutes §§ 1726–28; 22 U.S.C.

23 §§ 4212–14), concerning accounting for consular

24 fees, shall not apply to fees collected under this sub25 section.
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1 (4) Fees authorized under this section shall be

2 collected and available for obligation only to the ex3 tent and in the amount provided in advance in ap4 propriations Acts.

5 (c) RESTRICTION.—No funds may be made available

6 to an accrediting entity to carry out the purposes of this

7 Act.

8 SEC. 404. ENFORCEMENT.

9 (a) CIVIL PENALTIES.—Any person that—

10 (1) provides adoption services in the United

11 States to facilitate a Convention adoption without

12 appropriate accreditation in accordance with title II,

13 (2) makes a false or fraudulent statement or

14 misrepresentation of material fact, or offers, gives,

15 solicits or accepts improper inducement intended to

16 influence or affect—

17 (A) decisions concerning the accreditation

18 of persons to perform adoption services and

19 central authority functions under this Act,

20 (B) the relinquishment of parental rights

21 or parental consent relating to the adoption of

22 a child within the scope of this Act, or

23 (C) the decisions or actions of persons and

24 entities performing central authority functions

25 pursuant to the Convention and this Act,
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1 (3) makes a disclosure of information not au2 thorized by section 401(d) or to a person not author3 ized to receive the information under that section, or

4 (4) engages in coercive action to gain consent

5 to termination of parental rights or to adoption,

6 shall be subject, in addition to any other penalties that

7 may be prescribed by law, to a civil money penalty of not

8 more than $5,000 for a first violation, and not more than

9 $10,000 for each succeeding violation.

10 (b) ENFORCEMENT.—

11 (1) COORDINATION WITH ATTORNEY GEN12 ERAL.—The Secretary of State may impose a civil

13 money penalty under subsection (a) pursuant to

14 such procedures as may be agreed upon by the Sec15 retary and the Attorney General.

16 (2) NOTICE AND HEARING.—No penalty shall

17 be assessed under this section until the person

18 charged has been given written notice and an oppor19 tunity to respond.

20 (3) FACTORS CONSIDERED IN IMPOSING PEN21 ALTY.—In determining the amount of the penalty,

22 the gravity of the violation, the degree of culpability,

23 and the history of prior violations, if any, shall be

24 considered.
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1 (c) CRIMINAL PENALTIES.—Whoever knowingly and

2 willfully commits a violation specified in subsection (a)(2)

3 shall be subject to a fine of not more than $10,000, or

4 imprisonment for not more than one year, or both.

5 TITLE V—GENERAL PROVISIONS

6 SEC. 501. RELATION TO OTHER LAWS.

7 (a) LIMITED PREEMPTION.—No provision of Fed8 eral, State, or local law shall be considered preempted by

9 the Convention, this Act, or implementing regulations un10 less specified in this Act.

11 (b) INDIAN CHILD WELFARE ACT.—Nothing in this

12 Act or in the Convention is inconsistent with or modifies

13 the provisions of the Indian Child Welfare Act (25 U.S.C.

14 1901 et seq.) concerning custody and placement of chil15 dren subject to that Act.

16 (c) STATE LICENSING LAWS.—Nothing in the Con17 vention or this Act precludes any State from requiring

18 that a person or entity be licensed by the State as a condi19 tion of providing adoption-related services.

20 SEC. 502. NO PRIVATE RIGHT OF ACTION.

21 Nothing in the Convention or this Act creates a pri22 vate right of action to seek administrative or judicial relief,

23 except to the extent specifically provided.

24 SEC. 503. EFFECTIVE DATE; TRANSITION PROVISIONS.

25 (a) EFFECTIVE DATE.—
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1 (1) PROVISIONS EFFECTIVE UPON ENACT2 MENT.—Except as provided in paragraph (2), this

3 Act shall take effect upon its date of enactment.

4 (2) PROVISIONS EFFECTIVE UPON THE CON5 VENTION’S ENTRY INTO FORCE.—Subject to the pro6 visions of subsection (b), sections 104, 202, 402,

7 and 404 and titles III and IV shall take effect upon

8 the date of entry into force of the Convention for the

9 United States pursuant to Article 46(2)(a) of the

10 Convention, and shall govern Convention adoptions

11 made final thereafter.

12 (b) TRANSITION PROVISIONS.—

13 (1) ADOPTIONS IN PROCESS ON EFFECTIVE

14 DATE.—The Convention and this Act shall not

15 apply—

16 (A) in the case of a child immigrating to

17 the United States, if the application for advance

18 processing of an orphan petition or petition to

19 classify an orphan as an immediate relative for

20 such child is filed before the effective date spec21 ified in subsection (a); or

22 (B) in the case of a child emigrating from

23 the United States, if the prospective adoptive

24 parents initiated the adoption process in their

25 country of residence with the filing of an appro-
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1 priate application before the effective date of

2 this Act.

Æ