INTERCOUNTRY ADOPTION CONVENTION IMPLEMENTATION ACT OF 1999: SUMMARY AND ANALYSIS OF S. 682
CRS Report for Congress
Intercountry Adoption Convention Implementation
Act of 1999: Summary and Analysis of S. 682
September 14, 1999
Douglas Reid Weimer
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Intercountry Adoption Convention Implementation Act
of 1999: Summary and Analysis of S. 682
Summary
S. 682, 106th Cong., 1st Sess. (1999), the proposed “Intercountry Adoption Act
of 1999” would implement certain requirements of the Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry Adoption
(“Convention”). The United States became a signatory to the Convention on March
31, 1994. The Senate treaty ratification process has not yet occurred. In order to
implement the provisions of the Convention, each signatory country must enact
domestic legislation to fulfill treaty requirements, To this end, the bill is drafted so
as to amend U.S. law in order to comply with the requirements of the Convention.
Contents
In troduction ......................................................1
Summary and Analysis of the Provisions of S. 682........................2
Section 1. Short Title; Table of Contents...........................2
Section 2. Findings............................................2
Section 3. Definitions..........................................2
Title I — United States Central Authority...............................3
Section 101. Performance of Central Authority Functions..............3
Section 102. Authority of the Department of State....................3
Section 103. Responsibilities of the Secretary of State................3
Section 104. Responsibilities of the Attorney General.................4
Section 105. Annual Report on Intercountry Adoptions................4
Title II — Accreditation of Persons Providing Intercountry Adoption Services.5
Section 201. Eligibility to Provide Intercountry Adoption Services.......5
Section 202. Accrediting Entities.................................5
Section 203. Eligibility for Accreditation...........................6
Section 204. Oversight of Accreditation............................7
Title III — Recognition of Convention Adoptions in the United States........8
Section 301. Adoptions of Children Immigrating to the United States....8
Section 302. Amendments of the Immigration and Nationality Act.......8
Section 303. Adoption of Children Emigrating from the United States...10
Section 304. Special Rules for Certain Cases.......................12
Section 305. Voiding of Adoptions for Cause......................12
Section 306. Recognition of Convention Adoptions Before Entry into
Force of Convention for the United States.....................12
Title IV — Administration and Enforcement...........................13
Section 401. Records; Privacy Provisions.........................13
Section 402. Documents of Other Convention Countries..............13
Section 403. Authorization of Appropriations; Collection of Fees......14
Section 404. Enforcement......................................14
Title V — General Provisions.......................................15
Section 501. Relation to Other Laws.............................15
Section 502. No Private Right of Action..........................15
Section 503. Effective Date; Transition Provisions..................15
Conclusion ......................................................15
Intercountry Adoption Convention
Implementation Act of 1999:
Summary and Analysis of S. 682
Introduction
Interest has focused on S. 682,1 the proposed “Intercountry Adoption Act of
1999”(“bill”). The bill would implement certain requirements of the Hague
Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption (“Convention”). The bill was introduced on March 23, 1999 by Senator
Helms and cosponsored by Senator Landrieu. On the same day the bill was referred
to the Senate Committee on Foreign Relations (“Committee”). The bill has not
emerged from the Committee. The Committee has scheduled hearings on the bill on
September 15, 1999.
The United States became a signatory to the Convention on March 31, 1994.
The Convention was transmitted to the Senate for its advice and consent on June 11,
1998.2 The purpose of the Convention is to establish uniform standards and
procedures for the international adoption of children. Through the establishment of
such uniform procedures, the Convention will attempt to protect the rights and
interests of the adoptive children, the birth parents, and the adoptive parents involved
in intercountry adoptions. The Convention mandates that each signatory country
establish a national Central Authority. The Central Authority is to oversee the
Convention’s implementation in the signatory country.3 The Convention has three
primary features. First, it reinforces the protection of children’s rights concerning
international adoption. Second, it establishes a mechanism for the cooperation of
signatory countries in the areas of international adoption. Third, it ensures the
recognition of adoptions undertaken and certified through the Convention provisions.
In order to implement the provisions of the Convention, each signatory country
must enact domestic legislation which will fulfill the treaty requirements. To this
end, the bill is drafted so as to amend U.S. law in order to comply with the
1 106th Cong., 1st Sess. (1999).
2 On June 11, 1998, the Convention was read for the first time in the Senate, and together
with the accompanying papers, was transferred to the Senate Committee on Foreignth
Relations. See, S. Treaty Doc. 105-51, 105 Cong., 2d Sess. (1998). The Senate did notth
take action on the Convention in the 105 Congress. It is anticipated that the Convention
ratification process will occur simultaneously with the congressional consideration of the
bill in the fall of 1999.
3 See, S. Treaty Doc. 105-51 at v — xv for a summary of the provisions of the Convention.
requirements of the Convention. A summary and analysis of the bill’s provisions
follows.
Summary and Analysis of the Provisions of S. 682
For ease in locating the discussion of certain sections of the bill, this summary
and analysis is divided into sections that follow the organization of the bill.
Section 1. Short Title; Table of Contents
If enacted, the bill would be cited as the “Intercountry Adoption Convention
Implementation Act of 1999.”4 The bill’s table of contents is set out.
Section 2. Findings
The bill sets forth congressional recognition of the Convention’s international
character and the need for uniform interpretation and implementation of the
Convention in the United States and abroad. It also determines that the enactment
of a federal law governing intercountry adoptions is necessary.5
Section 3. Definitions
An extensive definitional section provides the meanings for the various terms
used in the Act.6 Among the terms defined are: accredited person; accrediting entity;
adoption services; agency; Attorney General; birth parent; central authority; central
authority function; Convention; Convention adoption; Convention adoption record;
Convention country; other Convention country; person; person with an ownership or
control interest; and State.7
4 Bill, Sec. 1.
5 Id. Sec. 2
6 Id. Sec. 3.
7 Id.
Title I — United States Central Authority
Section 101. Performance of Central Authority Functions
The bill specifies that the Department of State and other specified officials of
the United States are to carry out all of the central authority functions of the United
States.8 The Department of State is solely responsible for implementing the
provisions of this legislation.9
Section 102. Authority of the Department of State
The bill provides that the Secretary of State (“Secretary”) shall serve as the head
of the central authority of the United States. The bill further provides that all State
Department personnel performing central authority functions in a professional
capacity are required to have three to five years of personal or professional
experience in international adoptions. The bill authorizes the Secretary to proscribe
such regulations as may be necessary to carry out the central authority functions of
the United States.10
Section 103. Responsibilities of the Secretary of State
Specific responsibilities of the Secretary are enumerated in the bill. The
Secretary is to liaison with the central authorities of other Convention countries and
to coordinate Convention activities with persons subject to American jurisdiction.
The Secretary is required to provide relevant information concerning accredited
persons, Federal and State laws, and other necessary matters to the central authorities
of other Convention countries.11 The Secretary is required to provide Federal
agencies, State courts, and accredited persons with an identification of Convention
countries and persons authorized to perform functions under the Convention in each
country; to facilitate the transmittal of appropriate information among the central
authorities and the relevant persons; and to take appropriate actions necessary to12
implement the Convention.
The Secretary is vested with additional responsibilities. The Secretary is
required to monitor individual Convention adoption cases involving United States
citizens. The Secretary may facilitate interactions between citizens and officials of
other Convention countries on matters relating to the Convention in cases in which
8 Id. Sec. 101.
9 However, it should be noted that the Attorney General and the Immigration and
Naturalization Service have certain functions to perform under the provisions of the bill.
10 Bill, Sec. 102.
11 Id. Sec. 103(b).
12 Id.
an accredited person is unwilling or unable to provide such facilitation; and may
provide other appropriate assistance.13
The Secretary and the Attorney General are required to jointly establish a case
registry on all adoptions involving immigration into the United States, whether the
adoption occurs under the Convention or not; and all adoptions involving emigration
of the child from the United States to another Convention country. The registry is
to permit the tracking of pending cases and the retrieval of information on both
pending and closed cases.14
Section 104. Responsibilities of the Attorney General
The bill also vests the Attorney General with the central authority functions
which are specified in Article 14 of the Convention which relate to the filing of
applications by prospective adoptive parents to the central authority of the country
of their residence.15
Section 105. Annual Report on Intercountry Adoptions
One year after the date of the enactment of the bill and every following year, the
Secretary is required to submit a report to Congress which describes the activities of16
the central authority of the United States during the preceding year. The report is
to comprise various elements: number of adoptions involving immigration to the
United States; number of Convention adoptions, including country of origin; number
of intercountry adoptions that were disrupted with the details of the disruption; names
of persons accredited to perform intercountry adoptions; names of persons debarred
from performing intercountry adoptions and reasons for debarment; average time
required for intercountry adoption; number of intercountry adoptions completed in
the United States and the number of adoptions completed in each foreign country
from which children subject to such adoptions emigrated; number of intercountry
adoptions to the United States that were found to be fraudulent; average adoption fee
for intercountry adoptions from the United States set forth by country; and the
average fee for accreditation of persons engaging in intercountry adoption services.17
13 Id. Sec. 103(c).
14 Id. Sec. 103(d).
15 Id. Sec. 104.
16 Id. Sec. 105(a).
17 Id. Sec. 105.
Title II — Accreditation of Persons Providing
Intercountry Adoption Services
Section 201. Eligibility to Provide Intercountry Adoption
Services
Title II of the bill deals with the accreditation of the persons who provide
intercountry adoption services. Except as otherwise provided, no person may provide
adoption services relating to a Convention adoption unless that person is accredited
by an accrediting entity as provided by this title; or is providing such services through18
or under the supervision and responsibility of an accredited person. Certain
exceptions exist as to the provision of services relating to a Convention adoption.
These include certain social work professionals and organizations performing
background studies and related activities; entities providing child welfare services,
but not arranging the adoption; attorneys providing legal services; and prospective
adoptive parents acting on their own behalf.19
Section 202. Accrediting Entities
The bill directs the Secretary to designate as accrediting entities, and to enter
into agreements with, no more than five nonprofit entities that have experience and
expertise in developing and administering international adoption services and
standards for entities providing child welfare services and whatever other criteria that
the Secretary may establish by regulation. The accrediting entity may undertake an
accreditation only for intercountry adoption unless a person seeks additional program20
accreditation. Responsibilities of accrediting entities include accreditation of
persons to perform functions under the Convention; oversight of the compliance by
accredited persons with applicable requirements; enforcement, including the
imposition of remedies, corrective action, noncompliance sanctions, and other means;
and collection of data, maintenance of records, and making reports to the Secretary,
State courts, and other entities.21 Remedies are provided for an accrediting entity’s
denial, suspension, or cancellation of the accreditation of a person. The person
subject to adverse action is allowed to reapply for accreditation upon the
demonstration that the deficiencies have been corrected. The person subject to the
adverse action may petition the U.S. district court to set aside the action, but only
upon proof that the action was not supported by substantial evidence or that the
accrediting entity abused its discretion. An adverse action by the accrediting entity
shall not be reviewable by the Secretary of State or any other Federal agency or
administrative entity.22
18 Id. Sec. 201(a).
19 Id. Sec. 201(b).
20 Id. Sec, 202(a).
21 Id. Sec. 202(b).
22 Id. Sec. 202(c).
Accrediting entities are authorized to assess fees in amounts approved by the
Secretary against persons seeking or maintaining accreditation. The Secretary may
approve fees that do not exceed the amount estimated to be necessary to cover all
direct or indirect costs of accreditation and ongoing oversight by the accrediting
entity. Fees are to reflect the extent to which overall costs of accrediting persons
vary in relation to the volume of Convention adoption cases a person handles. An
accrediting entity is not permitted to provide discounted fees for certain persons for
accredi t at i on.23
Section 203. Eligibility for Accreditation
The eligibility for accreditation is set out. The Secretary shall establish by
regulation standards and procedures to be used by accrediting entities for the
accreditation of persons for arranging Convention adoptions. The Secretary shall
consider views of individuals and entities with interest in and knowledge of
international adoptions and family social services, including public and private
entities experienced in licensing and accrediting adoption agencies and the Secretary
may adopt, following public comment opportunities, all or part of any standards or
procedures developed or proposed by such individuals or entities.24
The bill sets forth a number of conditions for accreditation, unless the Secretary
provides otherwise by regulation. Specific requirements include 1) provision to
prospective adoptive parents of a copy in English of the child’s medical records not
later than the earlier of two weeks before adoption or the date on which the persons
travel to a foreign country to finalize the adoption; 2) a training program for the
adoptive parents that includes at least six weeks of counseling and guidance before
they travel to a foreign country to finalize the adoption; 3) employment of personnel
providing intercountry adoption services on a fee-for-service basis rather than on a
contingent-arrangement basis; 4) have in force adequate liability insurance for
professional negligence and any other insurance required by the Secretary; and 5)
permit open examination of the person’s practices, including disruption rates of
intercountry adoptions facilitated by the person and the fees charged by the person
for intercountry adoptions.25 Other requirements include the specific capacity to
perform all of the assigned functions related to the adoption procedures; to utilize
social service professionals; to maintain records, reports, and information materials;
and to comply with the provisions of this bill, the Convention, and other applicable
laws concerning fraud, improper inducement, and other egregious acts.26 No person
may be accredited unless the person is a private organization, not organized for
profit, and licensed to provide adoption services in at least one State.
23 Id. Sec. 202(d).
24 Id. Sec. 203(a).
25 Id. Sec. 203(b)(1)(A).
26 Id. Sec. 203(b).
Section 204. Oversight of Accreditation
The Secretary is required to monitor each accredited entity’s performance of its
functions and its compliance with the requirements of the Convention, the bill,
regulations, and other applicable laws. The Secretary must suspend or cancel the
designation of any entity found to be substantially out of compliance with the
requirements of the Convention, the bill, regulations, and other applicable laws.27
The Secretary may, on his/her own initiative or upon the request of an
accrediting entity, order the temporary or permanent debarment of a person from
accreditation for purposes of intercountry adoption if there is no possibility for
timely mediation and there is substantial evidence that the person is out of
compliance with applicable requirements; there has been a pattern of serious, willful,
or grossly negligent failures to comply, or other circumstances that indicate that
application renewal would not be in the best interest of the interested children and
families, or actions by a person that adversely impact important national interests of
the United States. The debarment order shall state whether it is temporary or
permanent. If temporary, the Secretary shall specify a date, not earlier than three
years after the date of the order, on which date the person may apply to the Secretary
for the withdrawal of the debarment. When a person has been debarred, the
accrediting entity may take the circumstances of such debarment into account in
considering any subsequent application for accreditation “of the person or of any
other person [entity] in which the person has an ownership or control interest,
notwithstanding that the period of debarment has elapsed.”28
A person, other than a prospective adoptive parent, person, or accrediting entity
adversely affected by a final determination regarding the designation of an
accrediting entity or the accreditation of a person, may obtain judicial review by the
U.S. District Court for the District of Columbia, or in the U.S. district court in the
judicial district in which such person or accrediting entity resides. The Secretary’s
determination may be set aside only if the person adversely affected presents clear
and convincing proof of abuse of discretion by the Secretary. A determination by the
Secretary upon the basis of foreign policy grounds is not subject to judicial review.29
27 Id. Sec. 204(a).
28 Id. Sec. 204(b)(3). Although “person” is defined in Sec. 3(14) and “person with an
ownership or control interest” is defined in Sec. 3(15), the precise meaning of this provision
is not entirely clear.
29 Id. Sec. 204(c).
Title III — Recognition of Convention Adoptions in
the United States
Section 301. Adoptions of Children Immigrating to the United
States
Title III of the bill provides for the recognition of Convention adoptions in the
United States. The Secretary, pursuant to Article 23 of the Convention, shall with
each Convention adoption, issue a certificate to the adoptive citizen parent domiciled
in the United States that the adoption has been granted, or in the case of a prospective
adoptive citizen parent, that the legal custody of the child has been granted to the
citizen parent for the purpose of emigration and adoption, pursuant to the Convention
and this legislation, if the Secretary receives appropriate notification from the central
authority of such child’s country of origin, and has verified that the requirements of
this legislation have been met. If this certificate is appended to an original adoption
decree, it shall be treated by Federal and State agencies, courts, and other public and
private persons and entities as conclusive evidence of the facts certified, except under
certain circumstances, and shall constitute the certification required by the30
Immigration and Nationality Act.
The final adoption in any other Convention country, certified by the Secretary,
shall be recognized as a final valid adoption for the purposes of all Federal, State, and
local laws of the United States, and shall be accorded the same legal effect as the
final adoption of a child in the State where such United States citizens reside or are31
domiciled. In the case of a child that has been admitted to the United States from
any other Convention country for the purpose of adoption, a State court shall not
have the authority to issue an order declaring the adoption final unless the Secretary
has issued the certificate described above.32
Section 302. Amendments of the Immigration and Nationality
Act
The bill makes certain amendments to the Immigration and Nationality Act (8
U.S.C. 1101)(“INA”). The definition of “child” in section 101(b)(1) of the INA is
amended by adding a new subparagraph (G) which describes a child under the age
of sixteen at the time a petition is filed on the child’s behalf to grant a classification
as an immediate relative to the adoptive parent, from a foreign country that is a party
to the Convention, or who is emigrating from such a foreign country to be adopted
in the United States, by at least one United States citizen and the citizen’s spouse
jointly, or by an unmarried United States citizen at least twenty-five years old, if: 1)
the Attorney General is satisfied that proper care will be furnished the child in the
United States; 2) in a case in which required by the country of the child’s habitual
residence, the child’s birth parents, or other person or institutions that retain legal
30 Id. Sec. 301(a).
31 Id. Sec. 301(b).
32 Id. Sec. 301(c).
custody of the child, have freely given their written irrevocable consent of the
termination of their relationship with the child; 3) in the case of a child who has not
been adopted, the competent authority of the foreign State has approved the child’s
emigration to the United States for the purposes of adoption by the prospective
adoptive parents; 4) the child is not the grandchild, niece, nephew, brother, sister,
aunt, uncle, or first cousin of any of the adopting parents, unless, under specific
circumstances, the child has no living mother or the father is unknown; and (5) the
prospective adoptive parent or married husband and wife have complied with any
adoption requirements of the child’s proposed State of residence. It is further
provided that no birth or former adopted parent of any such adopted child shall
thereafter, by virtue of such parentage, be accorded any right, privilege, or status.33
It could be inferred that the bill language in effect defines potential adoptive
parent(s) as a single parent or a married husband and wife. However, questions may
arise as to whether this provision would include a single adoptive parent cohabiting
with another person of the same or different sex. There appears to be uncertainty as
to precisely what adoptive parents (marital status and gender) are covered by the
definition. The bill does not specifically address how its requirements may impact
(either narrowing or broadening) the adoption requirements which are set by the
individual States.
Section 204(d) of the INA (8 U.S.C. 1154(d)) would be amended by adding a
new provision which states that no petition may be approved on behalf of an alien
child who seeks to be accorded immediate relative status as a child, unless the
Secretary has certified to the Attorney General that the central authority of the child’s
country of origin has notified the United States Central Authority under the
Convention that a United States citizen domiciled in the United States has effected
final adoption of the child, or has been granted custody of the child for the purposes
of emigration and adoption, in accordance with the Convention and this legislation.34
These amendments shall apply to petitions for classification under the INA filed on
or after the date of enactment of this legislation.35
33 Id. Sec. 302(a).
34 Id. Sec. 302(b).
35 Id. Sec. 302(d).
Section 303. Adoption of Children Emigrating from the
United States
Specific standards are set for adoptions of children emigrating from the United
States for adoption in any other Convention country.36 In these adoptions, the
accredited person providing adoption services or the prospective parents acting on
their own behalf, if permitted by the laws of the Convention country in which they
reside and the laws of the State in which the child resides, shall have various
responsibilities. Written documentation must be provided concerning: 1) background
study on the child that meets the standards of the State court with jurisdiction over
the child; 2) child will be adopted by a married man and woman;37 3) twelve months
have elapsed since the person made efforts to place the child in the United States; 4)
a determination has been made that the child cannot be placed in the United States;38
and 5) a determination has been made that the placement with the prospective
parents is in the best interests of the child.39
Prospective adoptive parents must furnish to State courts with the jurisdiction
over adoption cases the following: 1) documentation of the five factors described
above; 2) background report (home study) on the prospective adoptive parent or40
parents prepared in accordance with the laws of the receiving country; 3) a
background report compatible with the laws of the State with jurisdiction; 4) a
declaration by the central authority or other competent authority of the receiving
country that the child will be permitted to enter and reside permanently or on the
same basis as the adoptive parent in the receiving country; and that the central
authority or other authority of the receiving country consents to the adoption, if41
consent is necessary under its laws. The prospective adoptive parents must furnish
to the Secretary of State: 1) official copies of State court orders certifying the final
adoption or grant of custody for the purpose of adoption; 2) documentation of the
four factors described in this paragraph; and 3) any other information concerning the
36 Id. Sec. 303(a).
37 See, discussion below.
38 The bill specifically requires that a determination has been made “in accordance with
section 107 of Public Law 105-89” that the child cannot be placed in the United States.
However, Section 107 of Public Law 105-89 does not require such determinations. Rather,
Section 107 amends the Federal foster care program, authorized under Title IV-E of the
Social Security Act, and requires State child welfare agencies to document their efforts to
place children for adoption or other permanent arrangements if reunification with their
families is not determined appropriate. The provision applies only to children who are in
foster care under State supervision.
39 Id. Sec. 303(b)(1).
40 There may an inconsistency in the use of certain terms used in this section. The
introductory language of Section 303(b) refers to “prospective adoptive parents” and
requires that children be adopted by a married man and woman, while Section 303(b)(2)(B)
makes reference to the “prospective adoptive parent or parents.”
41 Bill, Sec. 303(b)(2).
case required by the Secretary to perform certification functions or otherwise to carry
out its responsibilities under the Convention.42
A State court certifying an adoption as final or granting custody for the purposes
of adoption of a child emigrating abroad will not be recognized by the Secretary or
the Attorney General for purposes of intercountry adoption unless the court: 1) has
received and verified to the extent it may find necessary the required information and
documentation described above and evidence that the Convention requirements have
been satisfied; and 2) determined that the adoptive placement is in the child’s best
interests.43 In these cases of a child emigrating abroad, the Secretary, upon the
receipt and verification of the requisite documents and information, shall issue, as
applicable, an official certification that the child has been adopted or a declaration
that the custody for purposes of adoption has been granted, in accordance with the
Convention and with this legislation.44 In adoption cases involving children
emigrating from the United States, States may impose additional responsibilities and
requirements, not inconsistent with the provisions of this section, upon accredited
persons and prospective adoptive parents acting on their own behalf.45
Two of these requirements are examined. The first of these is that in cases of
children emigrating from the United States, the child will be “adopted by a married
man and woman.”46 This requirement appears to provide a limit on the pool of
eligible adoptive parents to specifically a married man and woman.47 It should also
be noted that this language differs from the language used earlier in the bill for
prospective adoptive parents for children immigrating to the United States. This
language in Section 302 was: “the prospective adoptive parent or married husband
and wife.” The second limiting requirement in the bill is that twelve months have
elapsed since the person made efforts to place the child in the United States.48 This
one year wait would extend the period of adoption completion for those American
children who are to be adopted abroad.
42 Id. Sec. 303(b)(3).
43 Id. Sec. 303(c).
44 Id. Sec. 303(d).
45 Id. Sec. 303(e).
46 Id. Sec. 303(b)(1)(B).
47 The presumption is that the “married man” is married to the “woman” in this section.
However, an alternative interpretation could conceivably be made that the adoptive man is
married and the other adoptive parent is a woman, not necessarily married to the “married
man.” Alternative legislative drafting might be used, such as: “a married husband and
wife.”
48 Bill, Sec. 303(b)(1)(C).
Section 304. Special Rules for Certain Cases
The Secretary is required, to the extent consistent with the Convention, to
establish by regulation, alternative procedures for the adoption of children by
individuals related to them by blood or marriage and procedures permitting exception
to applicable requirements, and waiving penalties for noncompliance, in the case of
unintentional or harmless failures to comply with the requirements of the
Convention, this legislation, or implementing regulations.49
Section 305. Voiding of Adoptions for Cause
Provision is made for the voiding of adoptions for cause. The bill permits a
U.S. State court, in addition to any remedies available under State law, to vacate a
final adoption decree in a case subject to the Convention only if the decree was
granted by a U.S. court and there is clear and convincing evidence that 1) consent
was obtained by fraud or other specified egregious act; 2) voiding the adoption is in
the child’s best interests; 3) less than two years have passed since custody was
granted; and 4) the adoptive parents have an opportunity to participate in the
proceeding.50 Authorities in the United States are required to recognize the action of
another Convention country vacating a final adoption, provided that the adoption was
made in that country and that the decision to vacate was made for the reasons stated51
above for voiding a Convention adoption made in the United States. If a court of
competent jurisdiction voids an adoption decree, such an action does not void or
prohibit the naturalization of the child as a citizen of the United States. The bill does
not limit the authority of the Attorney General under the INA to revoke the
naturalization of such a child or to limit the Attorney General’s discretion to consider
a finding of fact by a State court that is relevant to such a determination.52
Section 306. Recognition of Convention Adoptions Before
Entry into Force of Convention for the United States
An adoption concluded between two Convention countries that satisfied the
requirements of the Convention and that became final before the date of entry into
force of the Convention for the United States shall be recognized thereafter in the
United States and given full effect.53
49 Id. Sec. 304.
50 Id. Sec. 305(a).
51 Id. Sec. 305(b).
52 Id. Sec. 305(c).
53 Id. Sec. 306.
Title IV — Administration and Enforcement
Section 401. Records; Privacy Provisions
Requirements are provided for maintenance of Convention adoption records.
The Secretary of State and the Attorney General are to establish procedures for the
retention and the identification of Convention adoption records.54 Except under very
specific circumstances, identifying information contained in Convention adoption
records shall not be disclosed. An individual or an individual’s parent or guardian
who would otherwise have a right to access any Convention adoption record through
the Privacy Act (5 U.S.C. § 552a) shall have such right with respect to identifying
information in such a record only to the extent that such right is not restricted by this
legislation. Disclosure of identifying information in any Convention adoption record
shall be subject to any restriction imposed by the Privacy Act and shall also be
subject to any restriction in this legislation. A child who is the subject of a
Convention adoption record shall not be afforded access to identifying information
in such record, and such information shall not be disclosed to such child, unless the
child has reached age eighteen.55 Information contained in the records of the
Department of State and the Immigration and Naturalization Service relating to
adoption cases subject to the Convention shall not be disclosed to any person
pursuant to the Freedom of Information Act (5 U.S.C. § 552).56 Information in
Convention adoption records may be disclosed by the State Department, any official
of the United States exercising central authority functions, and any accredited person,
if necessary to administer the Convention or this legislation.57 For the purpose of this
section, “identifying information” means any information contained in an adoption
record other than information relating to health, social, or genetic background of the
child, and which does not specifically identify the child, as prescribed by the
Secretary of Health and Human Services, in consultation with the Secretary of State
and the Attorney General.58
Section 402. Documents of Other Convention Countries
Documents that may originate in any other Convention country and which are
related to a Convention adoption case shall require no authentication or legalization
in order to be admissible in any Federal, State, or local court in the United States,
unless a specific and supported claim is made that the documents are false, have been
altered, or are otherwise unreliable.59
54 Id Sec. 401(a).
55 Id. Sec. 401(b).
56 Id. Sec. 401(c).
57 Id. Sec. 401(d).
58 Id. Sec. 401(e).
59 Id. Sec. 402.
Section 403. Authorization of Appropriations; Collection of
Fees
Funds are authorized for appropriation as may be necessary to the Federal
agencies implementing the Convention and the provisions of this legislation. Such60
appropriated funds are authorized to remain available until expended. The
Secretary is authorized to charge a fee as prescribed by regulation to cover the costs
of new or enhanced services undertaken by the Department to fulfill the requirements
of the legislation. Such fees collected shall be deposited as an offsetting collection
to any Department of State appropriation to recover the costs of providing such
services. No funds may be made available to an accrediting entity to carry out the61
purposes of the legislation.
Section 404. Enforcement
Civil penalties are provided by the bill which may be in addition to any other
penalties that may be prescribed by law. Civil money penalties of up to $5,000 for
the first violation and $10,000 per subsequent violation are provided for: 1) provision
of adoption services in the United States in Convention cases without proper
approval or accreditation; 2) false or fraudulent statements or misrepresentation of
fact or improper inducement concerning accreditation decisions, relinquishment of
parental rights or parental consent, or to influence accreditation related or the
decisions or actions of persons performing central authority functions; 3) disclosure
of unauthorized information; or 4) coercive action to gain consent to termination of62
parental rights or to adoption.
Enforcement procedures are set out. The Secretary may impose a civil money
penalty as described above pursuant to procedures as agreed upon by the Secretary
and the Attorney General. No penalty can be assessed until the person charged has
been given written notice and an opportunity to respond. Various factors are to be
considered in determining the amount of the penalty: gravity of the violation; degree
of culpability; and history of prior violations, if any.63
Criminal penalties are also provided. Whoever knowingly and willfully
commits a violation concerning fraudulent statement, misrepresentation, as described
above, shall be subject to a fine of not more than $10,000, or imprisonment for not64
more than one year, or both.
60 Id. Sec. 403(a).
61 Id. Sec. 403(c).
62 Id. Sec. 404(a).
63 Id. Sec. 404(b).
64 Id. Sec. 404(c).
Title V — General Provisions
Section 501. Relation to Other Laws
The bill deals with the issue of preemption. It states that the Convention, the
legislation, and any implementing regulations do not preempt other Federal, State,
or local law unless such laws are clearly inconsistent with either the Convention or
the Act.65 The bill further provides that nothing in the Convention or the bill is to be
construed as inconsistent with or modifying the Indian Child Welfare Act.66 Neither
the Convention nor the bill would preclude a State from requiring licensing as a
condition of providing adoption related services.67
Section 502. No Private Right of Action
Nothing in the Convention or the bill shall be construed so as to create a private
right of action, except as specifically provided.68
Section 503. Effective Date; Transition Provisions
With certain exceptions described below, the provisions of the bill are effective
upon enactment. Certain provisions of the bill (sections 104, 202, 402, and 404 and
titles III and IV) shall take effect upon the date of entry into force of the Convention
for the United States and shall govern Convention adoptions thereafter.69 The
Convention and the bill will not apply to: 1) a child immigrating to the United States,
if the application for advance processing of an orphan petition or petition to classify
an orphan as an immediate relative for such child is filed before the effective date;
or 2) a child emigrating from the United States, if the prospective adoptive parents
initiated the adoption process in their country of residence with the filing of an
appropriate application before the effective date.70
Conclusion
This report has provided a summary and analysis of the provisions contained in
S. 862, the Intercountry Adoption Convention Implementation Act of 1999. In order
to implement the provisions of the Convention, each signatory country must enact
domestic legislation which will fulfill the treaty requirements. This legislation would
create an entirely new body of Federal law which would provide a framework for the
implementation of the Hague Convention
65 Id. Sec. 501(a).
66 Id. Sec. 501(b).
67 Id. Sec. 501(c).
68 Id. Sec. 502.
69 Id. Sec. 503(a).
70 Id. Sec. 503(b).