How Will the United States Implement the Hague Convention?


While the Convention and The Intercountry Adoption Act (IAA) provide many details about U.S. implementation, the regulations that are still in preparation will provide many further details. The following general information can be provided subject, however, to some possible changes as the details to be set out in the regulations are worked out.

The U.S. Central Authority (USCA) will be established in the U.S. Department of State. The Bureau of Consular Affairs, Office of Children's Issues, will have primary responsibility for Central Authority functions. That Office will receive additional staff to handle its new tasks, services and responsibilities. The USCA will have programmatic and oversight responsibility for U.S. implementation of the Convention and will be the point of contact from within the United States and from abroad for all matters related to the Convention and to adoptions to and from the United States. The USCA will not itself be an adoption service provider - a function that will continue to be left to adoption agencies and individual adoption service providers.

However, for Convention adoptions such providers must qualify to provide these services through Convention accreditation, Convention approval, or through registration for temporary accreditation, or by providing such services under the supervision and responsibility of an accredited agency or approved person. The USCA will manage a computer-based case-tracking system with the Department of Homeland Security (DHS) that is to maintain a continuous, step-by-step record of all incoming and outgoing Hague Convention and non-Hague intercountry adoptions.

The USCA will be able to refer inquiries about U.S. State and other adoption laws to a reliable source for such information. It will be the point of contact for the Central Authorities of other countries about the status of any particular case and for the discussion and resolution of intergovernmental problems that may arise - systemic problems as well as problems involving particular cases. The USCA will be responsible for representation of the United States at intergovernmental special commission sessions of the Hague Conference on Private International Law dealing with implementation of the Hague Intercountry Adoption Convention and related matters.

The case-specific adoption services and functions set out in Convention Articles 14-21 are to be performed in the United States by Convention-accredited agencies. The case-specific functions set out in Articles 15-21 may, so far as the United States is concerned, also be performed by individual U.S. providers of adoption services, such as lawyers and social workers, and by for-profit agencies, provided they have qualified as Convention-approved persons in the United States.  Others may provide adoption services provided they do so under the responsibility and supervision of an accredited agency or approve person. Smaller community-based agencies may qualify for registration for temporary accreditation for one or two years.

The Department of State will designate one or more entities to accredit agencies, approve persons and register some agencies for temporary accreditation.  These entities will require a number of months after their designation to prepare to perform their functions. All Convention-accredited agencies and Convention-approved persons will need to meet the same standards to qualify to offer and provide adoption services for adoptions covered by the Convention and to maintain their accreditation or approval. Convention accreditation or approval will be for a set number of years and will be subject to renewal. Accreditation and approval will be subject to suspension, loss or non-renewal if an agency or person fails to maintain required standards. Serious or willful non-compliance may result not only in loss of accreditation or approval and thereby loss of the right to provide adoption services for Convention adoptions, but also referral of the matter for possible civil and criminal prosecution.

The activities of accrediting entities will be monitored by the State Department to ensure that they are effectively and uniformly screening agencies and persons and maintaining the accreditation or approval of only those agencies and persons that are complying with the requirements of the Convention, the IAA and applicable federal regulations.

The IAA requires annual reports to Congress with regard to certain aspects of Convention and IAA implementation. These reports will become available to the general public and to the Central Authorities of other countries beginning about one year after the Convention enters into force for the United States.

The IAA amends the Immigration and Nationality Act (INA). In view of the safeguards for the children, the birth parents and the adoptive parent(s) involved in Convention adoptions, incoming children whose adoption or placement for adoption abroad is covered by the Convention will qualify for immigrant visas even if they have two living parents, provided they have consented to termination of their legal relationship with the child, and provided they also meet other requirements.

Adoptions and placements for adoption made in the United States are currently subject only to State law and procedures and not to any federal law. Upon the Convention's entry into force for the United States the U.S. State, territory or commonwealth of residence of the child that is to emigrate to another Convention party country will be required to make the determinations set out for sending states in Articles 4 and 17 of the Hague Convention and to meet other requirements before an adoption or placement for adoption may proceed. Compliance with the requirements of the Convention and the IAA will be a new task for authorities of the several states and will require close cooperation between the U.S. Department of State and state courts and other authorities to ensure that the United States meets its treaty obligations to other countries party to the Convention.

Sources for List of Countries Party to the Hague Intercountry Adoption Convention, the Texts of the Hague Convention and the Intercountry Adoption Act of 2000

 
Text of the 1993 Hague Convention can be found here or see Senate Treaty Doc. 105-51; 32 International Legal Materials 1139 (1993). For the text of the Intercountry Adoption Act of 2000, see 42 U.S.C. 14901 et seq.; 114 Stat. 825; P.L. 106-279; 41 International Legal Materials 222 (2002);
 

April 2005