Expressing my Opinion...Translation of the Proposed New Adoption Law

(Scroll down for the translation of the new (proposed) Haitian Adoption Law.)

Adoptive families have been trying to find ways to get their adopted children home for Christmas. Adoption agency personnel from different countries, i.e. the Netherlands, U.S., Canada, France, etc. have been trying to gain access to the Ministry of Interior (MOI) offices to get files signed out. These files need to be signed out in order for already adopted children to receive their Haitian passports so that they can leave Haiti.

Adoptive families are upset with the personnel inside of MOI because many have been waiting for the passport issuance letter necessary to get their adopted child's passport for up to 10 months. However, the real culprit is not Mr. Guignard or Mr. Guerdy or Mr. Stanley Joseph in MOI, the real culprit in this mess seems to be UNICEF involvement --- therefore, UNICEF is whom we should start meeting with. I have asked to meet with UNICEF representatives, but so far, I have not gotten a response.

The more research I have been doing into this “mess”, the more I am learning that UNICEF's involvement into Haitian adoptions has basically gotten the adoptions to be at a stand still, especially in MOI. (Keep in mind that any adoption file that is inside of MOI, represents an already adopted child.)

Issues have been raised by UNICEF that adoptions in Haiti are not done with enough oversight and that there is child trafficking going on in adoptions. So, they have offered their assistance in the process since making this "accusation". If you do research, you will find that wherever UNICEF has become involved in the adoption process, adoptions have virtually grounded to a halt or have pretty much stopped all together.

UNICEF has a philosophy that children should stay in the birth country to be raised in "permanent" foster homes and or be adopted in the home country versus being "exported" for international adoption. However, in Haiti there are not enough in-country adoption possibilities, let alone "permanent" foster homes available.

Then there are the unsubstantiated accusations of child trafficking, the buying of children for adoption accusations, that are not backed up with any hard facts. (Instead the focus should be on actual child trafficking that is occuring, not in adoptions, but across the border to the Dominican Republic and other places within and outside of Haiti, where children are used for child labor and for the sex industry. This is entirely not adoption related.)

In Haiti, during the summer, there was an incident where a Haitian pastor had children that had been relinquished by their birth parents living in terrible conditions and that some of the adoptions he processing through IBESR were done illegally. However, no specific facts where ever published or reported other than the above. Also, there was no child buying going on. The main accusation appears that he was keeping the kids in poor conditions and that he was trying to take some short cuts getting files signed out of IBESR. There was no proof that the families in the adoption process were not qualified and had not followed rules in their home countries. Additionally, of the 50 adoption files that were mentioned in the Haitian news media, none of the adopting families have come forward to say anything. There was never any follow up reporting regarding this matter. No names of any organizations the pastor was working with were mentioned. It is making me wonder what happened there?

So, this kind of thing gives UNICEF ammunition. UNICEF reportedly investigated the incident and took the kids, gave them back to their birth families that had previously relinquished the children for adoption. The birth families received with some money from UNICEF. However, what will happen to the children and families when the money runs out?

Okay, let me go back to the topic of UNICEF involvement in IBESR and MOI (I cannot speak to Parquet since I am not too familiar with that office and Mr. Gassant).

IBESR is re-writing the adoption law with the assistance of UNICEF. The laws are supposed to make IBESR the central place that places children for adoption. It works in other countries like Colombia, but the referral process is slow in Colombia where it takes about two years to get a referral. Can you imagine how long it would take in Haiti without electricity or computers, and the necessary infrastructure, etc.

On a side note, you go into government offices like MOI that has wireless internet, but none of the desk computers are connected and the only ones who will touch a computer are the secretaries and clerks (not the directors or people in charge). Computers are used like typewriters were used in the old days... a director or person in charge will hand write out a letter and give it to a secretary to type. There are not such things as keeping a spreadsheet on a computer and updating it, but those things are written in big journal books. Just like in the old days...

That is what concerns me in having one central place receiving all dossiers from prospective adoptive parents and then receiving referrals of all adoptable kids into one central place... and then being the ones that determine who can adopt whom. To me, that leaves it wide open to bribery. If you are a creche/orphanage that is not in the good graces of the referring people, then your kids won't get referred out. So, how do you stay in the good graces with the IBESR people? (You fill in the blanks...)

On another side note, the current director of IBESR appears to be a very capable lady, but how long will she stay as the director?

Additionally, neither the Haitian government nor UNICEF fund the orphanages, creches, foyers where the children live. These places are funded mostly through faith based organizations, NGO's that get support for the countries where the children are adopted to. Adoptive parents's fees are utilized to not only feed, clothe and educate the children that they are in the process of adopting, but part of those fees go to the other children's care that are not in the process of being adopted.

It makes me wonder how something can be centrally organized and controlled when there is no central funding to take care of the children. Is UNICEF going to provide the funding for orphanages? In Colombia, orphanages are supported financially by the government.

Let me go back to MOI... all children whose files reach MOI have had their adoption finished. They are legally adopted children whose files have to be submitted to MOI from Immigration to have their Haitian documents (that includes everything from birth certificate to adoption decree) checked for accuracy and no errors.

UNICEF is putting pressure on MOI from what I can tell to ensure that all children have been legally adopted and that there was no child trafficking. Of course there are always the ever persistent rumors of adopted children being used for house slaves and/or for adoptive families to harvest their organs. I am not saying that UNICEF is perpetuating those rumors, those rumors have always been there because people cannot understand how a family can want to adopt to love and care for an abandoned or orphaned child. However, with UNICEF's scrutiny in the process, it helps those rumors along.

According to IBESR sources, it was stated that 1,900 children were adopted out of Haiti last year, 2006. Approximately 290 children came to the U.S. during that year. That means that a lot of children are adopted to France, Canada, the Netherlands, Argentina and some other countries.

When I have been in the MOI offices, there are hundreds of files in the offices. These files are supposed to be checked for accuracy and the parent interview form is to be filled out that lists the adopted child's information, the birth parent's information and the adoptive family's information, including the adoptive family's religion, passport or government i.d. number, address, telephone number, profession, work address and telephone number. That form has a passport photo of the adoptive parents and the adopted child glued onto it. This form is supposed to provide information on where the child went.

So, why is it taking so long for files to go through the MOI process?

There is one person, Mr. Guignard, who is in charge of signing the letter that accompanies each file back to Immigration for passport issuance that confirms that everything in this adoption was legitimate. That is a huge burden on one person who takes his job seriously.

Can you imagine doing this for 1,900 files per year? Keep in mind that he has lots of other jobs to do. Additionally, keep in mind that there is not the technologically advanced infra-structure that we are used to in the U.S. or other countries. The interview forms are done by hand. The person who is in charge of doing the interviews, Mr. Guerdy, has to get all the necessary information for the form from the adoption related documents. Only some information is provided by the orphanage workers. Most recently, instead of getting the address of the adoptive parents from the adoption decree, the orphanage workers are supposed to bring some sort of additional proof where the family lives.

This surprises me because every family has to go through a homestudy process where the social worker comes and visits the family multiple times and thus has been to the house where the family lives. That address is listed on the homestudy report and that is where the court gets the address for the adoption decree. This process is similar in each and every country.

Once the interview is done, the forms are hand written for a second time by somebody else, in "pretty writing" and the passport photos are glued onto the form. When I asked why this cannot be done utilizing technology, such as a computer, I was told that hand written forms are more accurate.

There are more people working on getting the interview forms done in the last couple of months. However, there is still no systematic filing system that is observable in place at the office. Files are in bundles and some really old files seem to have gotten "lost" to the bottom of the file cabinets in the shuffle. (At least the organization has gotten better over the past months.)

As you can imagine, as I have written in previously, this is a very time consuming process.

However, the most time consuming process is the Mr. Guignard has to go through each file a second time, after the lawyers at the Unit Juritique (in MOI) have already checked the paperwork, and after the interview form has been completed because his signature makes guarantees that all was legit in this adoption. That is a HUGE responsibility when "the UN is breathing down your neck" with their concerns.

What is the result? Because the infrastructure does not exist in the different government offices in Haiti to process things fast and efficiently, having this UNICEF pressure, is slowing the process down to a trickle of adopted children getting passports to leave the country to be with their adoptive families. Hundreds of children are waiting to have their passports issued to join their forever families.

Children languish in orphanages where they do not get the care of loving parents. (Many orphanages provide the best possible care for the children, but nothing compares to the love and care of a forever family.) They continue to stay institutionalized. Many adoptions have been in the process for over two years! Some are even taking longer now because their files have been in MOI since the beginning of 2007 and it is December 2007 now. The longer a child lives in an institutionalized setting the more damage they have psychologically. This leads to more disruptions because the children are more likely to suffer from RAD or other psychological issues. This is an outrage!

If hundreds fo children are stuck in their orphanages, then this means that hundreds of children are being turned away from orphanages because they are full of children stuck in the process. I wish that we could figure statistically out how many children have died as a result of being turned away from orphanages because of the slow down of issuance of passports. It is a crime!

Adoptive families are crying out to get their adopted children home. I see posts on discussion groups of parents who are now going through their third Christmas season without their adopted children because of the length of the process. I was at a friend's house recently who has been in the adoption process for over a year now. She showed me the nursery for the twin babies her family is adopting. It is fully equiped, beautiful, you can see the love that went into decorating the room... and where are her twin babies? In an orphanage nursery...waiting...It is heart breaking!

I used to donate to UNICEF. Trust me, they won't get a dime from me anymore...not that it matters much to UNICEF overall. I realize that UNICEF thinks that they are serving the best interest of the children by their watchfulness and involvement, but how come wherever they have gotten involved in the adoption process in sovereign countries, adoptions have slowed down to a trickle or have stopped all together. It is not because there are no more children to adopt because they are now well taken care of within the country and don't have need. The same number of children is still there, hungry, malnourished, sick and dying. The difference is that they are now dying in their home country instead of living and growing up with an adoptive family.

On another side note...many of the adoption organizations in Haiti are now raising the prices for their adoptions because of the long dragged out process and having to care for children for two or more years while they are in the process. Orphanages are no longer accepting dossiers from prospective adoptive families because of the backlog of adoptions. This increased cost and increased referral, let alone adoptive wait time is turning families away from Haiti and they are adopting elsewhere.

Changes need to be made to improve the lives of the children in Haiti, but it should be a fundamental approach to root out poverty and hunger, not by stopping inter-country adoptions.

English Translation of the Proposed New Haitian Adoption Law: (Thank you Amy for helping me translate this!)

FREEDOM EQUALITY FRATERNITY
REPUBLIC OF HAITI
Adoption LAW reform

RENE GARCIA PREVAL
PRESIDENT

Considering the Haitian Constitution of March 29, 1987;

Considering the Decree of December 22, 1971 governing the social works;

Considering the Decree of December 22, 1973 governing the status of the minors in children centres;

Considering the decree of April 4, 1974 on the adoption reinforcing the provisions of that of March 25, 1966.

Considering the Organic law of the Ministry of Social affairs dated March 6, 1983;

Considering the decree of August 28, 1987 creating the Ministry for the Social Affairs and integrating the Institute of the Good Social Being and Research among the technical and administrative organizations.

Considering the law of May 7, 2003 relating to the prohibition and the elimination of all forms of abuse violence, ill treatments or inhuman treatments against the children.

Considering the law of May 13, 2003 prohibiting the treatment cruel, inhuman and degrading against the children.

Considering the inter-American Convention on international traffic of minors sanctioned by the decree of November 26, 2003.

Considering the decree of December 23, 1994 ratification of the convention on the rights of the children.

Considering the additional protocol with the convention of the United Nations against organized trans-national criminality aiming at preventing, to repress and punish the draft of the people, in particular women and children sanctioned by the decree of November 26, 2003.

Considering the decree of January 12, 2004 with the convention of the United Nations against organized trans-national criminality aiming at preventing, to repress and punish the draft of the people, in particular women and children sanctioned by the decree of November 26, 2003;

Considering convention on the minimum age with employment (convention 138 of BIT) sanctioned by the decree of May 14, 2007.

Considering convention on the prohibition of the worst shapes of work children (convention 138 of BIT) sanctioned by the decree of May 14, 2007.

Considering that, promulgation of the decree of April 4, 1974 on the adoption at our days, the international adoption knew a fast growth which requires on behalf of the Haitian State of new laws and the procedures suitable for the reinforcement of the protection of the child in his biological family as well as in her own hearth of reception.

Considering that as regards adoption, it is advisable to respect the obligations which are made in the States signatories in accordance with article 21 of the Convention on the rights of the child.

Considering that certain fundamental principles governing from now on the international adoption, namely: the principle of the higher interest of the child, the principle of subsidiary which considers the international adoption like a measurement of last recourse, the principle of non discrimination drawing aside any distinction of race, sex, religion, birth, incapacity, of ethnic origin, national or social, or of any other situation.

Considering that it is necessary for the Haitian State to engage the process of modernization of its system.

On the report of the Ministers for Justice and Public Safety, Social Affairs and Work, and, after deliberation in the Council of Ministers:
The executive power
PROPOSED
And
The Legislative power
VOTED
The following law:

ARTICLE 1: The adoption is a solemn act which creates between an individual and a child who is not biologically it his of the family ties identical to those which result from paternity and filiations. It is regarded as a protection measure and is based on the higher interest of the child, by offering to him a permanent family and favourable with its blooming, in accordance with its basic rights.

SECTION 1 – The adoptive parents

ARTICLE 2 – Adoption can be requested jointly by a married heterosexual couple after 5 years of marriage when one of the spouse is 30 years of age and older.

If the request is from one of the spouse, the assent from the other spouse is necessary.

ARTICLE 3 – Two different sex persons living together for at least 10 years can present a request to adopt a child. The common life must be established with a certificate delivered by the competent authority of the welcoming country and the assent of the two is necessary.

ARTICLE 4 – Single women candidatures, of 35 years of age and older, are accepted. For men, he must be widow or divorced, without any biological children and must be 35 years of age or older.

ARTICLE 5 – The priority will be granted to married couples or those living common-law without any biological child at the moment of the adoption. When the heterosexual couples have at least 2 biological children, they can adopt children with particularity (handicap, health problems or children with more than 5 years of age).

If the couple already has biological or adopted children, they have to provide their assent if they are 8 years of age or older.

ARTICLE 6 – The age of adoptive parents cannot exceed 50 years for oldest of the two joint ones or the two people living in established free union.

ARTICLE 7 – Adoptive parents must be at least 16 years older than the child they want to adopt.

The minimum difference of age is 9 years in case of adoption of the spouse’s child or relatives at the degree of sister, brother, nephew, niece, uncle, aunt or relatives at the same degree.

ARTICLE 8 – Birth at home of one or more biological children is not an obstacle for the adoption by two spouses of a child or children previously supported and continues to receive their care.

ARTICLE 9 – When sisters, brothers, nieces, nephews, cousins, uncles, aunts or other from the same degree, even Godchildren, have been welcomed by close parents or godfather or godmother, following the death of their biological parents or long imprisonment, or when they are absolutely incapable to support the primary needs of their minors, the adoption is possible if their close parents already have biological children, following the conditions mentioned at Article 7.

ARTICLE 10 – A Haitian person can adopt a child following the legislation of the country of origin of the child.

A simple or plenary adoption is recognized in Haiti with the help of the recording of the aforesaid the adoption at the office of the Office of the marital status of the applicant's permanent address.

In the case of the conversion of a simple adoption into a plenary adoption, a request must be addressed to the senior of the Civil Court of the applicant's permanent address for obtaining a justified judgement.

The plenary adoption confers on the child the right to Haitian nationality.
SECTION II – The adoptive child

ARTICLE 11 – Only minors children until the age of 16 years can be adopted. As of 8 years of age, the child must give his assent for the adoption.

ARTICLE 12 – The adoption of a Haitian child by someone abroad is possible only in the case of absence of Haitian adoptive parents or an assumption of responsibility of relatives.

ARTICLE 13 - The adoptive child must be: an orphan child, a abandoned child, a child whose parents are in the total disablement to provide for its needs.

In the case of an orphan child of father and mother, it will be held a counsel of family to appoint a tutor having to grant the adoption.

When it is about a abandoned child, the Principal Mayor of the Commune declares the birth of the child and gives his assent to the adoption.

When the filiations of a child are established with regard to his father and mother, the assent of one or the other is necessary with the adoption.

When one of both has no possibility deceased or to express its will, assent other is enough.

ARTICLE 14 - The biological parents cannot validly grant the adoption that after having been the subject of a social evaluation on behalf of Institute Good Social Being and Research (IBESR) and after to have duly informed of the consequence of their act.

The assent with the adoption can be retracted during a 3 months deadline.

SECTION III - Legal form of adoption.

ARTICLE 15 - The adoption is considered simple when it lets remain the bonds between the biological adoptive child and his parents.

It is considered plenary when the aforesaid bonds disappear completely.

ARTICLE 16 – Simple adoption is authorized:

In case of national adoption
In case of interfamily adoption, national or international
In case of nationals Haitian living abroad
Plenary adoption is also possible in those cases.
The adoption is plenary during the national adoption of an orphan or abandoned child or an international adoption by foreign nationals.

PARAGRAPH I – The effects of the simple adoption

ARTICLE 17 - In the simple adoption, the adoptive child placed well under the parental authority of his adoptive family, preserves all his rights in his family of origin, in particular his hereditary rights.

ARTICLE 18 - The simple adoption confers the name of adopting on the adoptive child by adding it in the name of this last. No modification will be made when adopting it and the adoptive child has the same patronymic name.

In the event of adoption by husbands, the adoptive child takes the name of the husband.

ARTICLE 19 - In the request for purposes of judgement of the adoption, adopting it can, if it considers it necessary, request to modify or change the first name (S) of the child to adopt.

The Judge will analyze the request following of the specific criteria, year having cared to request the opinion of the child when this last at the necessary age.

ARTICLE 20 – The adoptive child has to provide assistance to the adoptive parent when necessary and reciprocally.

The obligation to provide assistance remains between the adoptive child and biological parents. However, the biological parents do not have to provide assistance to the adoptive child when the adoptive parents can.

ARTICLE 21 – The adoptive child and his descendants have in the family of adopting the same successional rights as a biological child, without however acquiring the quality of heir with regard to the ascending ones to adopting.

ARTICLE 22 - If the adoptive child dies without descendant, the goods given by adopting or collected in its succession and who exist in kind, at the time of the death of the adoptive child, turn over to adopting or its descendants, responsibility of contribute to the debt and without damages of the rights of the thirds.

The goods that the adoptive child received on a purely free basis of his biological father and mother turn over to the latter or their descendants.

The other goods of the adoptive child divide per half between the biological family and the family of adopting.

PARAGRAPH II - Prohibition of marriage and revocation of the adoption.

ARTICLE 23 - The marriage is prohibited between
The adoptive parent, the adoptive child and his descendants;
The adoptive child and the spouse of adopting and reciprocally between adopting and the spouse of the adoptive child.
The adoptive children by the same adoptive parent.
The adoptive child and the biological children of the adoptive parent.
The adoptive child and the members of his biological family.

ARTICLE 24 - The simple adoption is revocable.

The request for revocation can be formulated by the adoptive child for serious reasons such as:

misrepresentation at the time of the request of adoption,
ill treatments inflicted to the adoptive child,
sexual contact with the adoptive child,

And another facts prejudicial with the physical and psychic integrity of the adoptive child.

Adoptive parent cannot ask the revocation of the adoption only if it is established that the adoptive child made an attempt on his life, that of joint sound or to his other children.

ARTICLE 25 - If the adoptive child has the age of sufficient understanding, it can itself ask the Civil Court the revocation of the adoption. In the contrary case, the Public Ministry can, of office or on request of the IBESR, to present the request for revocation near the Civil Court.

ARTICLE 26 - The revocation puts an end to for the future all the effects of the adoption.

PARAGRAPH III – The effects of the plenary adoption

ARTICLE 27 - The plenary adoption definitively breaks all the bonds of filiations existing between the adoptive child and his family of origin.

It is irrevocable.

The adoptee loses his name of origin like successional straight in his biological family.

ARTICLE 28 - The adoptive child has, in the family of adopting, the same rights and the same obligations as a biological child.

ARTICLE 29 - The plenary adoption confers on the child the name of adopting and, in the event of adoption by two husbands, the name of the husband.

In the request of the adoptive parents, the Judge can amend the first name (s) of the child having cared to request the opinion of the child when this last at the necessary age.

ARTICLE 30 - The plenary adoption of the child of the spouse is allowed only with the assent of the mother or the biological father of the child or if legal filiations with regard to one or the other of the biological parents is unknown or that it deceased or disappeared.

SECTION IV – the adoption process

ARTICLE 31 - The IBESR is the supervisory authority of reference and for all the requests for adoption.

It centralizes all the files of the children like those of the candidates to the adoption and holds the relative registers.

It preserves all the data and provides, if necessary, of information to the consulates and/or the qualified official authorities.

The files of adoption are preserved during at least 80 years.

ARTICLE 32 – The files of adopting foreign must obligatorily be sent to the IBESR by an Organization of Adoption Approved of the host country and duly entitled by the IBESR.

ARTICLE 33 - When biological parents wish to give a child in adoption, they must be addressed firstly to the IBESR which will record the request, will inform the parents and will carry out the social evaluation.

The maintenance of the child in his family must be encouraged for the period of evaluation.

ARTICLE 34 - When the biological parents bring the child in an orphanage (place of lodging of transit), the persons in charge for the institution are held to announce the arrival of the child to the IBESR within 24 hour.

Using the information provided by the persons in charge for the Creche on the identity of the biological parents, the IBESR will contact the family in order to carry out the social evaluation.

ARTICLE 35 - The finished evaluation, the IBESR decides if the adoption serves or not the higher interests of the child, by taking account of the fact that poverty in itself does not constitute a sufficient reason for abandonment.

ARTICLE 36 – The biological parents must personally sign the assent for adoption of the child in front of the Judge of the Peace of their residence.

ARTICLE 37 – IBESR holds the parental authority after the biological parents signed the assent with the adoption.

Orphanages are given custody of children who are confided to them.

ARTICLES 38 - After the constitution of the file of the adoptive child, the IBESR proceeds with the decision of the grouping of electoral lists by attributing a child to a couple or a person candidate whose file reached him(her) beforehand and which was approved.

IBESR passes on the decision in adoptive parents when it is about a national adoption and in the OAA concerned abroad in the case of an international adoption.

ARTICLE 39 – The report of assent in the adoption, the decision of the IBESR and all other details of the file are subjected, for judgment, to the Civil Court of the place of residence of adopting him or that of the adopted, in the case or adopting him is a foreigner.

ARTICLE 40 - Later deliberated, the Court, by motivated decision, pronounces or refuses a simple or plenary adoption according to Articles 15 or 16.

In the first case, the device of the judgment contains the mentions prescribed by the article 812 of the Code of civil procedure.

In case of refusal, each of the parts can, in 30 true days of the pronouncement of the judgment, summon it to the Court of Appeal, which instruct in them even form that the Civil Court.

By a motivated stop, the Court of Appeal confirms or rejects the decision of the Civil Court.

ARTICLE 41 - The appeal against the Court decision of appeal is exercised by request of the providing in 30 true days of the meaning of the decision of the Court of Appeal. Providing him conforms in the conditions of shape and of delay common planned by the Code of civil procedure.

ARTICLE 42 - According to the obligation of registration of any judgment of adoption in registers, the Registrar of the place of residence of the adopted establishes a new birth certificate for the plenary adoptions.

ARTICLE 43 - The simple or plenary adoption produces effects as from the date in which the decision admitting the adoption is spent in strength of res judicata.

ARTICLE 44 - In all cases of adoption, the administrative and judicial authorities take all appropriate measures to prevent undue gains and are still trying to find interest supervisor of the Child.

ARTICLE 45 - It is a requirement for the adoptive IBESR Haitians and foreigners (through OAA) to provide reports on the development and integration of the child into his new family.

The reports must reach the IBESR every 4 months for the first three years and twice a year for the following years.

The Department of Foreign Affairs, through the consulate established in the host country, follows up on children in terms of full adoption.

The Ministry of Social Affairs and Labour, from information provided by the IBESR, will inform the Foreign Affairs for purposes beyond themselves;

SECTION V - Clause repeal

ARTICLE 46 - This Act repeals all laws or provisions of Laws, Decrees or all provisions of Decrees, all Decrees-laws or provisions of Decrees-laws which are contrary and will be published and implemented at the discretion of the Ministers of Justice and Social Affairs everyone in their respect.

From the Legislative Palace, in Port-au-Prince on _________________2007 204th year of Independence.
For the Senate of the Republic
For the Chamber of Deputies____________________________