Friday, July 17, 2009

Proposed Haitian Adoption Law Revision = BAD IDEA

I want to give my five cents to this "new" = old 2006 written and proposed adoption law in Haiti... I personally think that the law is NOT a good idea. The law was written ("co-authored") by UNICEF and we all know that UNICEF is very anti-adoption and would prefer children to live in Haiti (in orphanages because there are few in-country adoptive homes) versus being adopted internationally.

Thus, the law is geared to slowing the process down even more and to make the adoption process more difficult than it already is. HOLT writes that the current adoption process is taking up to four years. That is a ridiculous time line and most adoptions currently do NOT take four years. 

Counting from the time that the dossier reaches Haiti up to the point that the child's file comes out of MOI and a passport is issued, should take 12-18 months. The time prior to the dossier reaching Haiti and the time it takes the respective receiving country (i.e. the U.S. Consulate) to issue immigration permission cannot be counted against the Haiti adoption timeline because it has nothing to do with the Haitian side of the adoption process.  

The law proposes to "fix" the no-bio kids stipulation that is causing many families difficulties, BUT it also proposes a new referral process that will slow down referrals and will open up the process to possible bribes and corruption.  

Currently, a licensed for adoption orphanage can receive adoption dossiers and is able to make adoption referrals to the prospective adoptive families. This process is smooth and does not take much time. However, with the proposed 2007 law, all dossiers have to be received by IBESR directly and then it is somebody in IBESR that will make a child adoption proposal referral of a child that is on its list living in one of the licensed orphanages.  

Currently, El Salvador, the Dominican Republic and Jamaica has a very similar dossier receiving and child referral process. Adoptions in the countries with such a referral system are extremely slow because it takes forever to receive an adoption referral. Plus, the prospective family does not get as much information about the proposed child as they would with an orphanage referral.  

Additionally, my concern is that Haiti, like many non-developed country bureaucracies, offices work really slow and it will be an office worker who decides what child from which particular orphanage will be adopted. (I mean no disrespect to anybody working in IBESR because they are short staffed and underpaid as is.)  

My fear is that only orphanages that are "in good graces" with the particular referring office will get its children referred for adoption. As a result, in my opinion, that leaves things open for corruption, bribes, etc. (Again, I mean no disrespect to anybody working in IBESR, but this is a possibility.)  

Many orphanages in Haiti can financially survive and take care of children because they handle adoptions. With the proposed new (old) law, many orphanages would go under financially and would stop functioning, allowing only big organizationally backed orphanages to survive. Since IBESR, the Haitian government and UNICEF do NOT provide funding for orphanages in Haiti, unless they want to start funding these orphanages, this is a really BAD idea and will ultimately leave hundreds if not several thousand of kids homeless and starving to death.  

I am really surprised that HOLT and Joint Council would put their push and backing into this law and would want prospective and adoptive families to put their weight behind it. It makes little sense to me and I hope that people will really look at this proposed law and it severe negative consequences.  

Two years ago when this law was first proposed, lots of people who run orphanages, who work in adoptions expressed their concerns about this law to the Haitian parliament and that is why it was not passed at that time.

Here is an English translation of the proposed law:

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

Adoption LAW reform


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
The Legislative power
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 hisnew 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 informationprovided 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 willbe 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____________________________


kayder1996 said...

Any thoughts on how to advocate for the 1974 laws to be rewritten in a better way?

Anonymous said...

This is terrible news. How can we let them know we do not support this? Heidi (adoptive mom)

Anonymous said...

This really sounds bad. What can we do??
Would a petition bare any weight?
Jolanda (NL) said...

I think that parents can contact the organizations that support the proposed Haitian law and let them know of your concerns.

Anonymous said...

I agree with you Vera. I don't understand why some organizations of adoptive parents ask to support this project of Law? They have to read it before! This "new" Law is the beginnning of the end of adoption in Haiti. But the problems for the children is absolutly not resolved! What are they going to become...? Will they have to stay all their childhood in orphanages? Or in the streets? Who is going to help the orphanages to keep all the children alive... ? And what about the love they need...?

Jhon said...

This "new" Law is the beginnning of the end of adoption in Haiti. But the problems for the children is absolutly not resolved!

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Anonymous said...

Hi Vera,

I have a case # from my adoption agency. Is there a way to verify whether or not my case # actually exist? I've heard that some agencies have given false case # to adoptive parents to make them believe that their case is moving. How can a family verify if our dossier is really in parquet? Please advise.