The Office of Children’s Issues, in response to adoption service provider (ASP) and adoption stakeholder questions regarding existing soft referral guidance disseminated on March 16, 2018 and May 2, 2018, provides the following clarifications related to soft referrals made to prospective adoptive parents (PAPs) who have not yet completed a home study.

This clarification, together with the March 16, 2018 “Guidance on Soft Referrals” and the May 2, 2018 “FAQ on Soft Referrals,” together constitute the Department’s interpretive guidance on the topic of soft referrals.  The Department is aware that some ASPs have expressed concern about language in the February 13, 2018 FAQ, “IAAME’s Fee Schedule,” included in response to a specific ASP request, that stated, “a soft referral is not acceptable practice under the regulations and may lead to adverse action.”  The February 13, 2018 FAQ is not part of the Department’s interpretive guidance on the topic of soft referrals, and should not be understood as describing a broader range of conduct than those addressed in the Department’s guidance.

The guidance applies to all countries and to referrals of any child who is eligible for intercountry adoption, despite the fact that some examples refer to children with special needs.

If permitted by state law and the child’s country of origin, an informal match of an eligible child (commonly referred to as a “soft referral”), can be made prior to the completion of a home study, so long as the child is not “held” for the matched family and thus prevented from being referred to another family that may be suitable and already have a completed home study.  Thus, an ASP may identify an eligible adoptive child to a prospective adoptive family that has not yet completed its home study, but must do so in a manner that does not restrict the child from consideration by other families or by the authorities of the child’s country of origin.

For example, if permitted by a foreign country, and provided that doing so is in the best interest of an eligible child concerned, an ASP may:

• Inform the foreign country that a prospective adoptive family, which has not yet completed its home study, wants to adopt a specific child;
• Make a soft referral of a child to a biological relative of the child, or to the adoptive parent of the child’s biological sibling or other close relative, prior to the completion of the family’s home study;
• Make a soft referral of an older or special needs child to a prospective adoptive parent who has not yet completed a home study, so that the home study can be completed with the child’s particular needs in mind;
• Make a soft referral of a child to a prospective adoptive parent who has not yet completed a home study, where the ASP believes, based upon the needs of the particular child concerned, that doing so would be in the child’s best interests;
• Share information about an eligible child on an online photolisting, provided such sharing complies with the laws of the child’s country of origin and 22 CFR 96.39(f).

An ASP who makes a soft referral to prospective adoptive parents who have not yet completed a home study, regardless of its reason for doing so, may not take any action to “hold” the child for the prospective adoptive parents, or to prevent or impede the foreign government authorities from considering other placements for the child.  Similarly, an ASP who has received a child’s “file” from the foreign central or competent authority for recruitment or other purposes may not “reserve” the child for its own clients, whether or not it has made a soft referral to a particular client, if another ASP has a suitable family ready to proceed with a child’s intercountry adoption.

Accordingly, an ASP in either of these circumstances may not:

• Prevent, impede or dissuade the foreign central or competent authorities from considering on an alternative placement for the child or from placing or matching the child with a prospective adoptive family;
• Prevent or dissuade another ASP or prospective adoptive parent from inquiring about the child;
• Inform another ASP or prospective adoptive parent that the child has been placed, “reserved,” or is otherwise unavailable for intercountry adoption;
• Guarantee the placement of a child matched through a soft referral to a prospective adoptive family;
• Refuse to provide to another ASP information about the child;
• Require a prospective adoptive parent to use the ASP as their primary provider or pay a fee to the ASP as a condition of providing information about the child, or impose any other condition on the provision of the information;
• If an ASP receives an inquiry from another ASP about an eligible child, the ASP:
• May inform the inquiring ASP that there is a prospective adoptive parent interested in the child, but must inform the inquiring ASP that the child has not been matched with an eligible family;
• Must not dissuade or discourage the inquiring ASP from contacting the foreign central or competent authority to request information about or a placement of the child;
• Must provide to the inquiring ASP all documentation and information with respect to the child received or obtained from the foreign central or competent authorities, including basic identifying information about the child that would allow another ASP to communicate with the foreign central or competent authority about a family that is interested in the child;
• Must provide to the inquiring ASP all medical and psychological information about the child, from any source, but is not otherwise required to provide documentation (including translations) created by or on behalf of the ASP after receiving the child’s file (ASP work product);
• May not inquire about the suitability of the family requesting the information before providing the information;
• May not impose any conditions on the provision of this information, including but not limited to payment of a fee or use of the ASP as a primary provider.

This guidance relates to the roles and responsibilities of ASPs in the use of soft referrals, and does not limit the discretion of a foreign central or competent authority to determine, to the extent permissible under its own law, that it is in the best interests of the child to “hold” the child for adoption by a prospective adoptive parent who has not yet completed a home study, even when another prospective adoptive parent with a completed home study is waiting for a referral.  However, an ASP may not take any action that would prevent, impede or dissuade the foreign central or competent authority from making a different placement.

Thus, an ASP:

• May advocate for placement with the PAPs to whom it has made a soft referral to a foreign central authority that is considering an alternative placement for the child, provided that only  the foreign central or competent authority decides which placement is in the child’s best interest;
• May not request that the foreign central or competent authority adopt a formal or informal policy of declining to accept or consider applications for alternative placements after a soft referral has been made;
• May not request or suggest, when making a soft referral for a child, that the foreign central or competent authority decline to accept or consider applications for alternative placements for the child;
• May not place any other condition on its acceptance of a child’s file for recruitment or other purposes that would give the ASP the exclusive right to determine the placement of a child or otherwise limit the discretion of the foreign central or competent authority to do so.

This guidance does not prohibit ASPs from working with any foreign central or competent authorities, or from participating in any particular program, such as the China Special Focus Program, operated by the central or competent authorities of a foreign country.  However, all ASPs must ensure that their conduct is consistent with the regulations, including this guidance, and operating within a particular program is not, by itself, a guarantee that an ASP’s conduct is consistent with this guidance.