Child Adoption: Another Form of Violence

Relative to its population, Guatemala provides the most children for adoption in the world. The business originated in the war’s horrors, violates national and international laws, has grown exponentially in recent years, is fed by poverty and greed, is highly profitable and usually is run by well organized networks.

Juan Hernández Pico, SJ

The growth of violence in Guatemala increasingly horrifies people. On October 18 the Guatemalan Episcopal Conference released a statement that expresses what many people feel. One of its points says: “We are angered by the lack of respect for human life that causes the wave of violence we are immersed in to grow ever bigger. Drug trafficking and organized crime is taking over more and more of the country’s regions, capturing ever greater numbers of young people as agents, hit-men and accessories to horrendous criminal acts. The national statistics for homicides and the particular cruelty with which many of them are carried out show how increasingly powerful and immune to punishment the criminal forces are. With the conviction of our faith in Christ, the Church states that ‘violence is an evil; it is unacceptable as a solution to problems and unworthy of humanity’ (Compendium of the Church’s Social Doctrine, 496).”

TAKING JUSTICE
INTO ONE’S OWN HANDS

A few days ago the residents of a barrio in Alta Verapaz acted with the force of righteous anger and expropriated vehicles used by drug traffickers to transport large quantities of drugs to a secret airfield. In turn the drug traffickers stole the police vehicles that had turned up and got away in them. It is hardly surprising therefore that the bishops continue their statement as follows: “Increasingly, the administration of justice enjoys little credibility. Impunity is generally perceived to be crime’s strongest ally throughout the country. More and more people thus consider the only solution to be for groups of citizens to work outside the law and justice, taking action to eliminate presumed or real criminals. Furthermore, the state’s profound weakness in effectively confronting powerful organized crime through the imposition of law is leading the country into an anarchic situation, which deeply worries us.”

I don’t know if the bishops thought through the risk involved of beginning the sentence about more and more people taking justice into their own hands with “For this reason.” Whatever the ambiguity might imply, Prensa Libre’s October 26 Sunday edition published excerpts from interviews with eight Guatemalan bishops in which all expressed their indignation at the violence and its continued increase. We don’t know how the journalists or editors chose bits of the interviews for publication, but only one cause of the violence—lack of employment—was mentioned, and only by one bishop. In the statement quoted above, two other causes are included: Guatemala’s invasion by drug trafficking and the failure of the institutions responsible for justice to respond to the challenge by meting it out, which in some cases provokes people to take that task into their own hands.

Violence has its roots in the economy, history, culture...

It seems obvious that if the causes of violence are not thoroughly investigated, it will be impossible to eliminate it effectively once and for all. The young hit-men denounced by the bishops are probably unemployed or work at insecure, badly paid jobs. The state’s inability to expropriate empty urban land for fully constitutional reasons such as “social benefit”—its owners expect a profit—in order to build housing with green areas and sports facilities within people’s economic reach perpetuates inhuman living conditions in shanty towns and ravines that are a breeding ground for violence. Even if the government doesn’t have the courage to expropriate, it could draw up an alternative urban plan in those shanty towns and ravines. Both construction and urban planning would provide employment and proper housing, as well as bearable or even encouraging living conditions. Moreover, a real development plan for Guatemalan agriculture would help cut off migration to the cities, particularly the capital, thus reducing the proliferation of young people without education or work. The spread of response models for young people similar to the Puente de Belice College’s job-study project would open the possibility of preventing children on the threshold of adolescence from joining gangs.

Violence has causes, it has roots. If the causes aren’t discovered and the roots aren’t torn up, military or police deployment won’t be effective or will turn into prolonged war and something even crueler, as the example of Mexico reveals. Some causes are harder to eradicate: the peace accords were fulfilled by disbanding the feared judicial, estate and roving military police forces and an attempt was made to convert the corrupt National Police into the National Civil Police. But many members of the disbanded police forces were allowed to join the new one or return to civilian life with their weapons, as if saying to them: these are the tools of your trade. In addition, Congress never passed the various arms control bills.

It’s possible that our present culture has become brutally accustomed to violence by a state that committed crimes against humanity and whose armed branch was never brought to justice. Neither were the estate owners who supported them, some of whom have written recently in El Periódico that the violence might decrease if corpses were to appear on the sidewalks again. In addition, although to a lesser degree, the guerrilla movement’s violent methods also played a part in assimilating violence into Guatemalan culture. Some say it’s necessary to roll time back even further with the goal of redistributing the land and wealth that was violently seized from the indigenous peoples and poor creoles by a state always quick to oppress and repress and slow to invest socially in the masses it governed. The best way to redistribute wealth is by imposing significant taxes, enough to represent a high percentage of the GDP, which in fact is one of the Guatemalan peace agreements that were never implemented.

Without doubt, the unjust poverty is one of the many mothers of violence, as are the roots of that violence, including the mythic ones contained in ancestral death-centered culture and religious models. The Human Rights Office of the Archbishop of Guatemala (ODHAG) published a study, “Situation of children in Guatemala 2004,” which states that domestic violence, including sexual violence, is the fourth most common cause of death of children in Guatemala.

There is also violence in adoptions

Today we want to focus on another sort of violence: the one concealed behind many of the adoption procedures in Guatemala, whose big business implications bear a distant relationship to drug trafficking. It also reveals another cause of violence: the greed for easy money gained through illicit business deals that break national and international law and crush human dignity.

Various nongovernmental organizations—Casa Alianza, the Survivors Foundation, the Social Movement for the Rights of Children and Adolescents, the Myrna Mack Foundation and the Human Rights Office of the Archbishop of Guatemala—as well as one governmental one—the President of the Republic’s Social Welfare Secretariat—have produced an important study titled “Adoptions in Guatemala: protection or marketplace?” It was finished in November 2007 and we are being allowed to publish some of its conclusions.

International legal framework

There is a legal framework for adoption in Guatemala that conforms to international standards. As a member of the United Nations, Guatemala is bound by a document passed by its General Assembly in 1986: the “Declaration on the social and legal principles prelating to the protection and welfare of children, with special reference to foster placement and adoption internationally and nationally.” The underlying principles governing this text relate to the possibility of adoption when the parents cannot look after one of their offspring or when their care is inappropriate and the preference is for adoption in the home country, unless the necessary conditions do not exist there. It further requires that the parents be given enough time and counseling before reaching a decision, forbids kidnapping or any other illegal act for adoption purposes, prohibits those arranging adoptions to benefit from them financially and establishes social and legal protection for the children’s interests.

It also requires Guatemala’s observance of the “Convention on the Rights of the Child,” passed by the UN General Assembly in 1989 and formally approved by the Guatemalan Congress in 1990. By 2007, 192 countries had ratified the Convention—all minus the United States and Somalia. This fact is highly significant considering that the United States generates the greatest demand for adopting Guatemalan children: 26,783 (88%) of the 30,434 adoptions carried out between 1997 and 2007.

The increased demand for adopting Latin American children and a lack of controls in the States led to the approval of the “Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption” in The Hague in 1993. It aims to give “the child’s best interests” in adoption; to make states cooperate to guarantee this and prevent the kidnapping, sale or trafficking of children; and ensure that adoption is carried out according to its regulations.

These regulations stipulate that international adoption should only take place when it has been established that a child is suitable for adoption and adoption is impossible to achieve in the child’s own country; when it is certain that the people, institutions and authorities whose consent is required for the adoption have been counseled with regard to the consequences of their consent and when that consent is legal and freely given in writing and no pay or compensation has been received in exchange. The mother’s consent is only valid after the baby’s birth. In cases where the children are “of a certain age and maturity” they must receive advice, their opinions and desires must be taken into account, and their legal and freely given consent must also be put in writing with no pay or compensation being received in return. The authorities are obliged to confirm the suitability of the adoptive parents and the counseling received, and that the children being adopted have permission to enter the country of adoption and remain there permanently. Finally, each signatory state to the Convention must designate a central state authority—administrative rather than judicial—to be in charge of ensuring that all contractual obligations are met. In 2002 Guatemala’s Congress approved the state’s inclusion in this Convention.

The foundations of this big business

In national legal terms, the first text of importance is the 1985 Constitution. Its article 54 establishes that “the protection of orphaned and abandoned children is of national interest and that adopted children acquire the condition of son or daughter to the adoptive parent.” Chronologically prior to this is the 1963 Civil Code, which is highly deficient with regard to the adoption process. Adoption in Guatemala, unlike internationally, is considered from a practical perspective, but requires that the request for adoption be presented to the highest judge in the ward of those making the request and that two honorable people bear witness to the applicants’ moral and economic capacity to fulfill their parental obligations.

In 1977 Congress approved the “Regulatory Law of Notary Procedures for Issues of Voluntary Jurisdiction.” Adoption is one such issue. In fact the law altered the Civil Code, getting rid of the judicial authority by accepting that it could be just a person with a degree in law and public certification who could formalize the adoption. It also only required the approval of a competent authority, which was delegated to the Attorney General’s office (PGN); in other words, the state’s lawyer.

This law laid the foundations of the adoption business in Guatemala. Lawyers, gynecologists, obstetricians, pediatricians, traditional midwives, businesspeople who run foundling homes and the PGN officials themselves participate in it officially or with relative openness. At a clandestine level there are kidnappers, child-stealers, “fixers” or “mediators,” rapists or lovers, “child selling” mothers or fathers, as well as adoptive mothers and fathers willing to pay huge sums of money to adopt and consular officials who grant visas to the adopted children. All of them together make up the adoption racket, i.e. the kidnapping or stealing for adoption, sale, child trafficking or even organ trafficking.

National legislation seesaws

In 2003 the Guatemalan Congress approved the “Comprehensive Protection Law for Children and Adolescents” (LPINA), which tacitly or de facto abolished the 1977 law based on what lawyers call the legal “superiority principle.” In reality this law involves the adaptation of Guatemalan legislation regarding international and national adoption to the legal body of international agreements to which Guatemala is a signatory. To be fair, it should be noted that it was during Alfonso Portillo’s presidency, with an absolute majority of Ríos Montt’s FRG in the legislature, that Guatemala signed The Hague Convention (2002) and approved the LPINA (2003). Nevertheless, the year after the Convention was signed, an important group of legal professionals with interests in the adoption business filed suit in the Constitutional Court against Guatemala signing the 2002 Hague Convention, claiming unconstitutionality,. And the Constitutional Court, also mainly loyal to Ríos Montt, found in their favor. The basis for its decision was enshrined in the objections presented by the Guatemalan state in 1969 to articles 11 and 12 of the Vienna Convention on Treaty Rights, an objection confirmed in 1977 during Arzú’s presidency by a Congress in which his PAN party had an absolute majority. It had to do with the international legal body to which states belong taking priority over their own constitutional law.

This resolution by the Constitutional Court gave considerable momentum to legal adoption proceedings, despite the fact that by admitting them against the letter and spirit of LPINA, the Attorney General’s office was acting illegally by obeying the implicitly abolished 1977 law.

Finally in July 2007, six months before the end of his term, President Oscar Berger withdrew Guatemala’s objections to the Vienna Convention presented in 1969 and ratified in 1997. With this the legal premise for the unconstitutionality of Guatemala’s joining The Hague Convention was no longer valid. December 31 was the date chosen for The Hague Convention to go into effect and the President’s Social Welfare Secretariat was designated as the central state authority for managing adoption procedures. From now on it would have to act in coordination with the Treasury, the PGN, the judicial branch, the Ministry of Government and the Public Ministry.

President Colom:
Serious inconsistency

Before he left the presidency, Berger named representatives from both Foreign Affairs (constitutional lawyer Annabella Morfín) and the Social Welfare Secretariat (lawyer Marvin Rabanales, an expert on violence against children) to the National Council of Adoptions, but President Colom replaced them with two other people in the very first days of his government.

Helen Mack, president of the Myrna Mack Foundation, strongly criticized President Colom for not keeping his promise to not lend himself to any interests and to try and “control the child adoption business.” The authors of the study we‘re summarizing feared precisely that the adoption racket would use all its economic might and political influence to organize from within the Central Authority the continuation of its illegal and even criminal operations that constitute what Mack describes as a truly horrifying “business.” By intervening in an autonomous body that was already constituted in this way, Colom caused a breach in the country’s institutionality.

Only China supplies more children

The study in question explains the scope of the adoption business. Guatemala is “the fourth country in the world with respect to the number of children it supplies for international adoption after Russia, China and South Korea”. But “it is number one relative to its total population.”

“In 2006, 37 children were adopted for every 100,000 inhabitants” and 1% of all children born in the country were put up for adoption. “In 2003, six countries decided to apply a moratorium on adoption of Guatemalan children because they considered the practice corrupt: France, Spain, Canada, Holland, Germany and the United Kingdom, countries that occupy second, fourth, fifth, seventh, tenth and eleventh places among the countries that adopted Guatemalan children between 1997 and 2006.” France was the destination of some 1,400 adoptees, while the other countries declaring the moratorium had each been the destination for only hundreds or dozens of children. The number of children adopted by parents from these countries has dropped radically since 2003.

Third place is occupied by Guatemala itself, and the United States occupies the first place (88% of all adoptions between 1997 and 2007 and 97% in 2006). The huge US demand for adoption is one of the main causes of the growth of the racket in Guatemala. Only China outdoes Guatemala as a supplier of children for adoption in the United States. But Guatemala has slightly more than 13 million inhabitants and the People’s Republic of China 1.3 billion.

OrigIns: The armed conflict

Forced adoptions started to take place on a massive scale in Guatemala during the internal armed conflict “when many children that had been orphaned, lost or abandoned were given up for adoption” especially to families of military officials. According to the National Search Commission for Disappeared Children, sister to El Salvador’s Pro-Search founded by the late Jon Cortina, a Jesuit, around 5,000 children were disappeared, separated from their families or given up for adoption during the war years. By 2003 this Commission had documented 1,084 cases of disappeared children, of which 500 (46%) were babies under a year old who had been kidnapped and given up for adoption. A number were “saved” from the massacres in which their fathers, mothers, and older brothers and sisters lost their lives.

It’s difficult to get the whole picture due to the inaccessibility of the military files on orphanages and shelters and the adoption files themselves. On February 25, 2008, on the ninth anniversary of the Historic Truth Commission’s report “Guatemala, Memory of Silence,” President Colom ordered all the military files opened. But in October General Marco Tulio García Franco, the defense minister, stated publicly that he would not obey the President’s order because it was anti-constitutional; he said it would remain suspended until the suit presented to the Constitutional Court was settled.

Reality on a grand scale

The UN special rapporteur for child trafficking, child prostitution and the exploitation of children in child pornography has stated that what in Guatemala started as an attempt to find a solution to the brutal cases originated by armed conflict has over time become “a profitable commercial operation once it became obvious there was a substantial ‘market’ for adopting babies.” The rapporteur believes that “the trafficking of babies and young children exists on a huge scale in Guatemala.” Given all this, it seems justified to talk of another type of violence growing out of the internal armed conflict when digging around for reasons that explain the exponential increase of adoptions in Guatemala since the 1980s. The study adds that other causes can be found in the high pregnancy rates of young or adolescent women (113 per 1,000 young women between 15 and 19 years old give birth every year) and in the country’s poverty (51% of the population) and extreme poverty (15.2%).

More poverty, more coercion

The study acknowledges that “the women most likely to give their babies up for adoption due to coercion or trickery are under 25 years old, single mothers, uneducated and without economic resources to be able to obtain care,” be it prenatal, postnatal or during childbirth. It goes on to say that “violence against women is another factor, because babies resulting from rape are being given up for adoption” with trickery or coercion.

The Survivors Foundation followed the cases of five girls between 10 and 11 years old who were raped and became pregnant as a result and whose families refused to give the babies up for adoption on religious grounds. They concluded that the intent isn’t always to remove babies from families born to mothers who have been raped.

One reads in the report that the situation of “economic, social and cultural vulnerability and women’s sexual and reproductive rights are being taken advantage of by the networks trafficking children for adoption.” There is also a “wombs for rent” business, documented for example in a house in Alta Verapaz where women are taken care of during their pregnancy and labor. And “stealing, kidnapping and disappearing children” also exists.

State tolerance

In the opinion of the institutions that produced the study, all this is possible due to the Guatemalan state’s tolerance of adoption procedures have been illegal nationally since the approval of the LPINA in 2003, and in fact were already illegal ever since the nineties, when Guatemalan Congress adopted the international legal instruments to which we’ve referred above.

This means that there have been at least four years (2003-2007) not only of tolerance, but also of the state clearly breaking the law with respect to adoption procedures, because the country’s Attorney General has continued to accept certified documents from lawyers as the only instrument for adoption proceedings despite the LPINA stipulations. This is not unusual given the corruption in not just a few Guatemalan state institutions and the exorbitant amounts charged for legal certification in an adoption procedure. The study calculates it at between US$13,000 and $40,000 per case. The number of adoptions almost quadrupled in ten years from 1,265 in 1997 to 4,918 in 2006. The figures for 2007 are 3,694 adoptions, fewer than in 2006 because the study was finished before the end of the year. In the 11 years from 1997 to 2007, there were a total of 30,434 adoptions.

A business earning millions

Doing some simple calculations based on the study’s figures, if each adoption cost the minimum $13,000, we would be talking about a total of US$395,642,000 in these 11 years. And if each one had cost the maximum $40,000 it would amount to $1,217,360,000.

The real cost of adoption is surely somewhere between these two figures, which means that when we talk about adoption we’re not talking about a small or medium sized business but a huge industry. The study states that a normal adoption procedure through completely legal channels can cost a few thousand dollars, three times less than the minimum figure calculated by the institutions that produced the study.

Serious defects in the state

The study’s conclusions are important. The first establishes that the Guatemalan state has been violating the Convention on the Rights of the Child. For the last decade it hasn’t observed the international legal instruments it signed. It hasn’t even been observing the 2003 Comprehensive Protection Law for Children and Adolescents (LPINA), and has instead been governed by a law dating from 1977 that was implicitly abolished by the LPINA.

Children are being given up for adoption in the majority of cases without the full knowledge and consent of their biological mothers. The state has not ensured that adoption be national by preference, nor are there agreements between Guatemala and the United States to guarantee the best interests of the adopted children being taken there. The state permits adoption procedures to generate illicit financial benefits for those who manage any of its stages.

Finally, by accepting the certified documents as valid, the state has not done everything possible to prevent the adoption of children with insufficient information or under coercion, or even the adoption of a child who might have been stolen or kidnapped. In the case of adolescents or children of a certain age it has not ensured that they won’t be exploited as prostitutes or used for pornography, or even worse, trafficked for their organs.

Who’s involved in the
adoption network?

The second conclusion refers to the adoption network. The study’s researchers obtained data based on a specific side study of 1,803 adoption notices submitted to the Attorney General’s Office between May and August of 2007. In the adoption process “a total of 1,607 people participate. Of these, 392 are gynecologists, obstetricians or traditional midwives, 110 are pediatricians, 155 are lawyers, 142 are representatives and 808 are people responsible for caring for the children until the adoption process has concluded,” referring to employees of foundling homes or foster homes.

Furthermore there are parents who sell children; there are nurses, social workers, “fixers,” civil registrars who issue birth certificates or sell forged ones, public officials and in the worst cases child abductors, both men and women. Fixers are women who travel from village to village or neighborhood to neighborhood or prison to prison convincing mothers to give up their children for adoption. In other cases some traditional midwives perform this function. The monetary figures involved in this process, violating the rule that adoption procedures shouldn’t generate financial benefits for those who manage them, allow for hiring so many people.

“The money generated by adoption has also made certain people gather large numbers of children for adoption,” as one can see by the following figures: of the 155 lawyers working on these 1,083 cases, one was in charge of 66 cases, another of 45, two had 69 cases between them, three averaged 27 each, six had 141 between them, four an average of 18 cases each, 16 averaged 12.4 cases each, 18 had 135 cases between them, 70 had 238 cases between them and only 33 had one case each.

These differences also exist between the doctors and traditional midwives. There are “foundling home colonies” and “foundling home districts” (city districts where various colonies are located). “Pregnant women are being brought to the city to give birth and give their babies up for adoption.” These networks constitute “a crime-based economy directly connected to international adoption.”

The enormous financial benefits allow one to call this international adoption “child selling.” But the study goes further and states that these procedures ultimately mean “trafficking, because an excessive number of children are being given up for adoption without effective controls, transparency, regulated prices or clear knowledge of where the children come from. Trafficking also includes the foundling homes and individuals who take care of children until the adoption procedure is concluded, given that the majority of them act illegally or illicitly or receive considerable sums of money for their services.”

A legalized crime

The third conclusion refers to the connection between child trafficking and international adoption. “The cases studied allow for establishing a close correlation between ‘child theft-kidnapping-disappearance’ and ‘buying-and-selling children’ with international adoptions.” The correlation was established by studying “at least four cases, two in the middle of legal procedures and two with legal verdicts.” Both the human rights ombudsperson and the president of the Presidential Human Rights Commission (in Berger’s government) have corroborated them. The latter stated: “In Guatemala a crime is committed by stealing a child and then is subsequently legalized through an adoption procedure.”

Is there a connection
with feminicide?

The fourth conclusion, perhaps the most horrifying one, is that a connection with feminicide or attempted feminicide has been found in three of the cases studied, connected with “child theft-kidnapping-disappearance” and with “buying-and-selling children” in which various women ended up injured or dead. One of them was injured when her baby was snatched from her and she attempted to defend it and two others died in cases where the “fixers” argued with their clients. The study ends with these words: “A deeper analysis could reveal some specificity of the feminicides to the operations of the crime-based economy connected to adoption.”

It is known that feminicide is growing in numerical and relative importance within Guatemala’s homicide statistics. It has reached 10%, around 500 or more a year. But it would be horrific if any of these feminicides were committed after abducting young women, raping them until they became pregnant and forcing them to complete the pregnancy and give birth. Then their baby would be taken away and they would be murdered. But as yet this is no more than a research hypothesis.

A horrifying mosaic

We’ve often talked in envío’s pages about the mafia that accumulate global capital through crime and don’t stop at the use of violence to prop up their businesses. Buying and selling and trafficking in children and their connection with international adoption and also prostitution and pornography, as well as the organ transplant market, open windows for us onto another side of these mafias, different from drugs and arms trafficking, of which the Guatemalan network is only one branch. The horrifying mosaic of violence in Guatemala is now further illuminated with this piece: adoption in violation of the rights of children and their mothers and fathers. A macabre reality.

Juan Hernández Pico, sj, is the envío correspondent in Guatemala.

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