[House Report 106-691]
[From the U.S. Government Publishing Office]
106th Congress Rept. 106-691
HOUSE OF REPRESENTATIVES
2d Session Part 1
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INTERCOUNTRY ADOPTION ACT OF 2000
_______
June 22, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Gilman, from the Committee on International Relations, submitted
the following
R E P O R T
[To accompany H.R. 2909]
[Including cost estimate of the Congressional Budget Office]
The Committee on International Relations, to whom was
referred the bill (H.R. 2909) to provide for implementation by
the United States of the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION. 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Intercountry
Adoption Act of 2000''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
TITLE I--UNITED STATES CENTRAL AUTHORITY
Sec. 101. Designation of central authority.
Sec. 102. Responsibilities of the Secretary of State.
Sec. 103. Responsibilities of the Attorney General.
Sec. 104. Annual report on intercountry adoptions.
TITLE II--PROVISIONS RELATING TO ACCREDITATION AND APPROVAL
Sec. 201. Accreditation or approval required in order to provide
adoption services in cases subject to the Convention.
Sec. 202. Process for accreditation and approval; role of accrediting
entities.
Sec. 203. Standards and procedures for providing accreditation or
approval.
Sec. 204. Secretarial oversight of accreditation and approval.
Sec. 205. State plan requirement.
TITLE III--RECOGNITION OF CONVENTION ADOPTIONS IN THE UNITED STATES
Sec. 301. Adoptions of children immigrating to the United States.
Sec. 302. Immigration and Nationality Act amendments relating to
children adopted from Convention countries.
Sec. 303. Adoptions of children emigrating from the United States.
TITLE IV--ADMINISTRATION AND ENFORCEMENT
Sec. 401. Access to Convention records.
Sec. 402. Documents of other Convention countries.
Sec. 403. Authorization of appropriations; collection of fees.
Sec. 404. Enforcement.
TITLE V--GENERAL PROVISIONS
Sec. 501. Recognition of Convention adoptions.
Sec. 502. Special rules for certain cases.
Sec. 503. Relationship to other laws.
Sec. 504. No private right of action.
Sec. 505. Effective dates; transition rule.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress recognizes--
(1) the international character of the Convention on
Protection of Children and Co-operation in Respect of
Intercountry Adoption (done at The Hague on May 29, 1993), and
(2) the need for uniform interpretation and implementation of
the Convention in the United States and abroad,
and therefore finds that enactment of a Federal law governing adoptions
and prospective adoptions subject to the Convention involving United
States residents is essential.
(b) Purposes.--The purposes of this Act are--
(1) to provide for implementation by the United States of the
Convention;
(2) to protect the rights of, and prevent abuses against,
children, birth families, and adoptive parents involved in
adoptions (or prospective adoptions) subject to the Convention,
and to ensure that such adoptions are in the children's best
interests; and
(3) to improve the ability of the Federal Government to
assist United States citizens seeking to adopt children from
abroad and residents of other countries party to the Convention
seeking to adopt children from the United States.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) Accredited agency.--The term ``accredited agency'' means
an agency accredited under title II to provide adoption
services in the United States in cases subject to the
Convention.
(2) Accrediting entity.--The term ``accrediting entity''
means an entity designated under section 202(a) to accredit
agencies and approve persons under title II.
(3) Adoption service.--The term ``adoption service'' means--
(A) identifying a child for adoption and arranging an
adoption;
(B) securing necessary consent to termination of
parental rights and to adoption;
(C) performing a background study on a child or a
home study on a prospective adoptive parent, and
reporting on such a study;
(D) making determinations of the best interests of a
child and the appropriateness of adoptive placement for
the child;
(E) post-placement monitoring of a case until final
adoption; and
(F) where made necessary by disruption before final
adoption, assuming custody and providing child care or
any other social service pending an alternative
placement.
The term ``providing'', with respect to an adoption service,
includes facilitating the provision of the service.
(4) Agency.--The term ``agency'' means any person other than
an individual.
(5) Approved person.--The term ``approved person'' means a
person approved under title II to provide adoption services in
the United States in cases subject to the Convention.
(6) Attorney general.--Except as used in section 404, the
term ``Attorney General'' means the Attorney General, acting
through the Commissioner of Immigration and Naturalization.
(7) Central authority.--The term ``central authority'' means
the entity designated as such by any Convention country under
Article 6(1) of the Convention.
(8) Central authority function.--The term ``central authority
function'' means any duty required to be carried out by a
central authority under the Convention.
(9) Convention.--The term ``Convention'' means the Convention
on Protection of Children and Co-operation in Respect of
Intercountry Adoption, done at The Hague on May 29, 1993.
(10) Convention adoption.--The term ``Convention adoption''
means an adoption of a child resident in a foreign country
party to the Convention by a United States citizen, or an
adoption of a child resident in the United States by an
individual residing in another Convention country.
(11) Convention record.--The term ``Convention record'' means
any item, collection, or grouping of information contained in
an electronic or physical document, an electronic collection of
data, a photograph, an audio or video tape, or any other
information storage medium of any type whatever that contains
information about a specific past, current, or prospective
Convention adoption (regardless of whether the adoption was
made final) that has been preserved in accordance with section
401(a) by the Secretary of State or the Attorney General.
(12) Convention country.--The term ``Convention country''
means a country party to the Convention.
(13) Other convention country.--The term ``other Convention
country'' means a Convention country other than the United
States.
(14) Person.--The term ``person'' shall have the meaning
provided in section 1 of title 1, United States Code, and shall
not include any agency of government or tribal government
entity.
(15) Person with an ownership or control interest.--The term
``person with an ownership or control interest'' has the
meaning given such term in section 1124(a)(3) of the Social
Security Act (42 U.S.C. 1320a-3).
(16) Secretary.--The term ``Secretary'' means the Secretary
of State.
(17) State.--The term ``State'' means the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, Guam, and the
Virgin Islands.
TITLE I--UNITED STATES CENTRAL AUTHORITY
SEC. 101. DESIGNATION OF CENTRAL AUTHORITY.
(a) In General.--For purposes of the Convention and this Act--
(1) the Department of State shall serve as the central
authority of the United States; and
(2) the Secretary shall serve as the head of the central
authority of the United States.
(b) Performance of Central Authority Functions.--
(1) Except as otherwise provided in this Act, the Secretary
shall be responsible for the performance of all central
authority functions for the United States under the Convention
and this Act.
(2) All personnel of the Department of State performing core
central authority functions in a professional capacity in the
Office of Children's Issues shall have a strong background in
consular affairs, personal experience in international
adoptions, or professional experience in international
adoptions or child services.
(c) Authority To Issue Regulations.--Except as otherwise provided in
this Act, the Secretary may prescribe such regulations as may be
necessary to carry out central authority functions on behalf of the
United States.
SEC. 102. RESPONSIBILITIES OF THE SECRETARY OF STATE.
(a) Liaison Responsibilities.--The Secretary shall have
responsibility for--
(1) liaison with the central authorities of other Convention
countries; and
(2) the coordination of activities under the Convention by
persons subject to the jurisdiction of the United States.
(b) Information Exchange.--The Secretary shall be responsible for--
(1) providing the central authorities of other Convention
countries with information concerning--
(A) agencies accredited and persons approved under
title II, accredited agencies and approved persons
whose accreditation or approval has been suspended or
canceled, and accredited agencies and approved persons
who have been temporarily or permanently debarred from
accreditation or approval;
(B) Federal and State laws relevant to implementing
the Convention; and
(C) any other matters necessary and appropriate for
implementation of the Convention;
(2) providing Federal agencies, State courts, and accredited
agencies and approved persons with an identification of
Convention countries and persons authorized to perform
functions under the Convention in each such country; and
(3) facilitating the transmittal of other appropriate
information to, and among, central authorities, Federal and
State agencies (including State courts), and accredited
agencies and approved persons.
(c) Accreditation and Approval Responsibilities.--The Secretary shall
carry out the functions prescribed by the Convention with respect to
the accreditation of agencies and the approval of persons to provide
adoption services in the United States in cases subject to the
Convention as provided in title II. Such functions may not be delegated
to any other Federal agency.
(d) Additional Responsibilities.--The Secretary--
(1) shall monitor individual Convention adoption cases
involving United States citizens; and
(2) may facilitate interactions between such citizens and
officials of other Convention countries on matters relating to
the Convention in any case in which an accredited agency or
approved person is unwilling or unable to provide such
facilitation.
(e) Establishment of Registry.--The Secretary and the Attorney
General shall jointly establish a case registry of all adoptions
involving immigration of children into the United States and emigration
of children from the United States, regardless of whether the adoption
occurs under the Convention. Such registry shall permit tracking of
pending cases and retrieval of information on both pending and closed
cases.
(f) Methods of Performing Responsibilities.--The Secretary may--
(1) authorize public or private entities to perform
appropriate central authority functions for which the Secretary
is responsible, pursuant to regulations or under agreements
published in the Federal Register; and
(2) carry out central authority functions through grants to,
or contracts with, any individual or public or private entity,
except as may be otherwise specifically provided in this Act.
SEC. 103. RESPONSIBILITIES OF THE ATTORNEY GENERAL.
In addition to such other responsibilities as are specifically
conferred upon the Attorney General by this Act, the central authority
functions specified in Article 14 of the Convention (relating to the
filing of applications by prospective adoptive parents to the central
authority of their country of residence) shall be performed by the
Attorney General.
SEC. 104. ANNUAL REPORT ON INTERCOUNTRY ADOPTIONS.
(a) Reports Required.--Beginning one year after the date of the entry
into force of the Convention for the United States and each year
thereafter, the Secretary, in consultation with the Attorney General
and other appropriate agencies, shall submit a report describing the
activities of the central authority of the United States under this Act
during the preceding year to the Committee on International Relations,
the Committee on Ways and Means, and the Committee on the Judiciary of
the House of Representatives and the Committee on Foreign Relations,
the Committee on Finance, and the Committee on Judiciary of the Senate.
(b) Report Elements.--Each report under subsection (a) shall set
forth with respect to the year concerned, the following:
(1) The number of intercountry adoptions involving
immigration to the United States, regardless of whether the
adoption occurred under the Convention, including the country
from which each child emigrated, the State to which each child
immigrated, and the country in which the adoption was
finalized.
(2) The number of intercountry adoptions involving emigration
from the United States, regardless of whether the adoption
occurred under the Convention, including the country to which
each child immigrated and the State from which each child
emigrated.
(3) The number of Convention placements for adoption that
were disrupted, including the country from which the child
emigrated, the age of the child, the date of the placement for
adoption, the reasons for the disruption, the resolution of the
disruption, the agencies that handled the placement for
adoption, and the plans for the child, and in addition, any
information regarding disruption or dissolution of adoptions of
children from other countries received pursuant to section
422(b)(14) of the Social Security Act, as amended by section
205 of this Act.
(4) The average time required for completion of a Convention
adoption, set forth by country from which the child emigrated.
(5) The current list of agencies accredited and persons
approved under this Act to provide adoption services.
(6) The names of the accredited agencies and approved persons
temporarily or permanently debarred from accreditation or
approval under this Act, and the reasons for the debarment.
(7) The range of adoption fees charged in connection with
Convention adoptions involving immigration to the United States
and the median of such fees set forth by the country of origin.
(8) The range of fees charged for accreditation of agencies
and the approval of persons in the United States engaged in
providing adoption services under the Convention.
TITLE II--PROVISIONS RELATING TO ACCREDITATION AND APPROVAL
SEC. 201. ACCREDITATION OR APPROVAL REQUIRED IN ORDER TO PROVIDE
ADOPTION SERVICES IN CASES SUBJECT TO THE
CONVENTION.
(a) In General.--Except as otherwise provided in this title, no
person may offer or provide adoption services in connection with a
Convention adoption in the United States unless that person--
(1) is accredited or approved by an accrediting entity in
accordance with this title; or
(2) is providing such services through or under the
supervision and responsibility of an accredited agency or
approved person.
(b) Exceptions.--Subsection (a) shall not apply to the following:
(1) Background studies and home studies.--The performance of
a background study on a child or a home study on a prospective
adoptive parent, or any report on any such study by a social
work professional or organization who is not providing any
other adoption service in the case, if the background or home
study is approved by an accredited agency.
(2) Child welfare services.--The provision of a child welfare
service by a person who is not providing any other adoption
service in the case.
(3) Legal services.--The provision of legal services by a
person who is not providing any adoption service in the case.
(4) Prospective adoptive parents acting on own behalf.--The
conduct of a prospective adoptive parent on his or her own
behalf in the case, to the extent not prohibited by the law of
the State in which the prospective adoptive parent resides.
SEC. 202. PROCESS FOR ACCREDITATION AND APPROVAL; ROLE OF ACCREDITING
ENTITIES.
(a) Designation of Accrediting Entities.--
(1) In general.--The Secretary shall enter into agreements
with one or more qualified entities under which such entities
will perform the duties described in subsection (b) in
accordance with the Convention, this title, and the regulations
prescribed under section 203, and upon entry into each such
agreement shall designate the qualified entity as an
accrediting entity.
(2) Qualified entity.--In paragraph (1), the term ``qualified
entity'' means a nonprofit private entity that has expertise in
developing and administering standards for entities providing
child welfare services and that meets such other criteria as
the Secretary may by regulation establish.
(b) Duties of Accrediting Entities.--The duties described in this
subsection are the following:
(1) Accreditation and approval.--Accreditation of agencies,
and approval of persons, to provide adoption services in the
United States in cases subject to the Convention.
(2) Oversight.--Ongoing monitoring of the compliance of
accredited agencies and approved persons with applicable
requirements, including review of complaints against such
agencies and persons in accordance with procedures established
by the accrediting entity and approved by the Secretary.
(3) Enforcement.--Taking of adverse actions (including
requiring corrective action, imposing sanctions, and refusing
to renew, suspending, or canceling accreditation or approval)
for noncompliance with applicable requirements, and notifying
the agency or person against whom adverse actions are taken of
the deficiencies necessitating the adverse action.
(4) Data, records, and reports.--Collection of data,
maintenance of records, and reporting to the Secretary, the
United States central authority, State courts, and other
entities (including on persons and agencies granted or denied
approval or accreditation), to the extent and in the manner
that the Secretary requires.
(c) Remedies for Adverse Action by Accrediting Entity.--
(1) Correction of deficiency.--An agency or person who is the
subject of an adverse action by an accrediting entity may re-
apply for accreditation or approval (or petition for
termination of the adverse action) on demonstrating to the
satisfaction of the accrediting entity that the deficiencies
necessitating the adverse action have been corrected.
(2) No other administrative review.--An adverse action by an
accrediting entity shall not be subject to administrative
review.
(3) Judicial review.--An agency or person who is the subject
of an adverse action by an accrediting entity may petition the
United States district court in the judicial district in which
the agency is located or the person resides to set aside the
adverse action. The court shall review the adverse action in
accordance with section 706 of title 5, United States Code, and
for purposes of such review the accrediting entity shall be
considered an agency within the meaning of section 701 of such
title.
(d) Fees.--The amount of fees assessed by accrediting entities for
the costs of accreditation shall be subject to approval by the
Secretary. Such fees may not exceed the costs of accreditation. In
reviewing the level of such fees, the Secretary shall consider the
relative size of, the geographic location of, and the number of
Convention adoption cases managed by the agencies or persons subject to
accreditation or approval by the accrediting entity.
SEC. 203. STANDARDS AND PROCEDURES FOR PROVIDING ACCREDITATION OR
APPROVAL.
(a) In General.--
(1) Promulgation of regulations.--The Secretary, shall, by
regulation, prescribe the standards and procedures to be used
by accrediting entities for the accreditation of agencies and
the approval of persons to provide adoption services in the
United States in cases subject to the Convention.
(2) Consideration of views.--In developing such regulations,
the Secretary shall consider any standards or procedures
developed or proposed by, and the views of, individuals and
entities with interest and expertise in international adoptions
and family social services, including public and private
entities with experience in licensing and accrediting adoption
agencies.
(3) Applicability of notice and comment rules.--Subsections
(b), (c), and (d) of section 553 of title 5, United States
Code, shall apply in the development and issuance of
regulations under this section.
(b) Minimum Requirements.--
(1) Accreditation.--The standards prescribed under subsection
(a) shall include the requirement that accreditation of an
agency may not be provided or continued under this title unless
the agency meets the following requirements:
(A) Specific requirements.--
(i) The agency provides prospective adoptive
parents of a child in a prospective Convention
adoption a copy of the medical records of the
child on a date which is not later than the
earlier of the date that is 2 weeks before (I)
the adoption, or (II) the date on which the
prospective parents travel to a foreign country
to complete all procedures in such country
relating to the adoption. To the fullest extent
practicable, an English-language translation of
such records is provided.
(ii) The agency provides prospective adoptive
parents with a training program that includes
counseling and guidance for the purpose of
promoting a successful intercountry adoption
before such parents travel to adopt the child
or the child is placed with such parents for
adoption.
(iii) The agency employs personnel providing
intercountry adoption services on a fee for
service basis rather than on a contingent fee
basis.
(iv) The agency discloses fully its policies
and practices, the disruption rates of its
placements for intercountry adoption, and all
fees charged by such agency for intercountry
adoption.
(B) Capacity to provide adoption services.--The
agency has, directly or through arrangements with other
persons, a sufficient number of appropriately trained
and qualified personnel, sufficient financial
resources, appropriate organizational structure, and
appropriate procedures to enable the agency to provide,
in accordance with this Act, all adoption services in
cases subject to the Convention.
(C) Use of social service professionals.--The agency
has established procedures designed to ensure that
social service functions requiring the application of
clinical skills and judgment are performed only by
professionals with appropriate qualifications and
credentials.
(D) Records, reports, and information matters.--The
agency is capable of--
(i) maintaining such records and making such
reports as may be required by the Secretary,
the United States central authority, and the
accrediting entity that accredits the agency;
(ii) cooperating with reviews, inspections,
and audits;
(iii) safeguarding sensitive individual
information; and
(iv) complying with other requirements
concerning information management necessary to
ensure compliance with the Convention, this
Act, and any other applicable law.
(E) Liability insurance.--The agency agrees to have
in force adequate liability insurance for professional
negligence and any other insurance that the Secretary
considers appropriate.
(F) Compliance with applicable rules.--The agency has
established adequate measures to comply (and to ensure
compliance of their agents and clients) with the
Convention, this Act, and any other applicable law.
(G) Nonprofit organization with state license to
provide adoption services.--The agency is a private
nonprofit organization licensed to provide adoption
services in at least one State.
(2) Approval.--The standards prescribed under subsection (a)
shall include the requirement that a person shall not be
approved under this title unless the person is a private for-
profit entity that meets the requirements of subparagraphs (A)
through (F) of paragraph (1) of this subsection.
(3) Renewal of accreditation or approval.--The standards
prescribed under subsection (a) shall provide that the
accreditation of an agency or approval of a person under this
title shall be for a period of not less than 3 years and not
more than 5 years, and may be renewed on a showing that the
agency or person meets the requirements applicable to original
accreditation or approval under this title.
(c) Temporary Registration of Small Community Based Agencies.--For a
2-year period after the entry into force of the Convention and
notwithstanding subsection (b), the Secretary may provide, in
regulations issued pursuant to subsection (a), that an agency may
register with the Secretary and be accredited to provide adoption
services in the United States in cases subject to the Convention during
such period if the agency--
(1) is licensed in the State in which it is located and is a
non-profit agency;
(2) has been providing adoption services in connection with
intercountry adoptions for at least 5 years;
(3) has provided adoption services in fewer than 20
intercountry adoptions in the preceding calendar year;
(4) has demonstrated that it will be able to provide the
United States Government with all information related to the
elements described in section 104(b) and provides such
information;
(5) has initiated the process of becoming accredited under
the provisions of this Act and is actively taking steps to
become an accredited agency; and
(6) has not been found to be involved in any improper conduct
relating to intercountry adoptions.
SEC. 204. SECRETARIAL OVERSIGHT OF ACCREDITATION AND APPROVAL.
(a) Oversight of Accrediting Entities.--The Secretary shall--
(1) monitor the performance by each accrediting entity of its
duties under section 202 and its compliance with the
requirements of the Convention, this Act, other applicable
laws, and implementing regulations under this Act; and
(2) suspend or cancel the designation of an accrediting
entity found to be substantially out of compliance with the
Convention, this Act, other applicable laws, or implementing
regulations under this Act.
(b) Suspension or Cancellation of Accreditation or Approval.--
(1) Secretary's authority.--The Secretary shall suspend or
cancel the accreditation or approval granted by an accrediting
entity to an agency or person pursuant to section 202 when the
Secretary finds that--
(A) the agency or person is substantially out of
compliance with applicable requirements; and
(B) the accrediting entity has failed or refused,
after consultation with the Secretary, to take
appropriate corrective action.
(2) Correction of deficiency.--At any time when the Secretary
is satisfied that the deficiencies on the basis of which an
adverse action is taken under paragraph (1) have been
corrected, the Secretary shall--
(A) notify the accrediting entity that the
decifiencies have been corrected; and
(B)(i) in the case of a suspension, terminate the
suspension; or
(ii) in the case of a cancellation, notify the agency
or person that the agency or person may re-apply to the
accrediting entity for accreditation or approval.
(c) Debarment.--
(1) Secretary's authority.--On the initiative of the
Secretary, or on request of an accrediting entity, the
Secretary may temporarily or permanently debar an agency from
accreditation or a person from approval under this title, but
only if--
(A) there is substantial evidence that the agency or
person is out of compliance with applicable
requirements; and
(B) there has been a pattern of serious, willful, or
grossly negligent failures to comply or other
aggravating circumstances indicating that continued
accreditation or approval would not be in the best
interests of the children and families concerned.
(2) Period of debarment.--The Secretary's debarment order
shall state whether the debarment is temporary or permanent. If
the debarment is temporary, the Secretary shall specify a date,
not earlier than 3 years after the date of the order, on or
after which the agency or person may apply to the Secretary for
withdrawal of the debarment.
(3) Effect of debarment.--An accrediting entity may take into
account the circumstances of the debarment of an agency or
person that has been debarred pursuant to this subsection in
considering any subsequent application of the agency or person,
or of any other entity in which the agency or person has an
ownership or control interest, for accreditation or approval
under this title.
SEC. 205. STATE PLAN REQUIREMENT.
Section 422(b) of the Social Security Act (42 U.S.C. 622(b)) is
amended--
(1) in paragraph (11), by striking ``and'' at the end;
(2) in paragraph (12), by striking ``children.'' and
inserting ``children;''; and
(3) by adding at the end the following new paragraphs:
``(13) contain a description of the activities that the State
has undertaken for children adopted from other countries,
including the provision of adoption and post-adoption services;
and
``(14) provide that the State shall collect and report
information on children who are adopted from other countries
and who enter into State custody as a result of the disruption
of a placement for adoption or the dissolution of an adoption,
including the number of children, the agencies who handled the
placement or adoption, the plans for the child, and the reasons
for the disruption or dissolution.''.
TITLE III--RECOGNITION OF CONVENTION ADOPTIONS IN THE UNITED STATES
SEC. 301. ADOPTIONS OF CHILDREN IMMIGRATING TO THE UNITED STATES.
(a) Legal Effect of Adoptions Finalized in the United States.--
(1) Issuance of certificates by the secretary of state.--
Pursuant to Article 23 of the Convention, the Secretary of
State shall, with respect to 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 legal
custody of the child has been granted to the citizen parent for
purposes of emigration and adoption, pursuant to the Convention
and this Act, if the Secretary of State--
(A) receives appropriate notification from the
central authority of such child's country of origin;
and
(B) has verified that the requirements of this Act
have been met with respect to the adoption.
(2) Legal effect of certificates.--If appended to an original
adoption decree, the certificate described in paragraph (1)
shall be treated by Federal and State agencies, courts, and
other public and private persons and entities as conclusive
evidence of the facts certified therein and shall constitute
the certification required by section 204(d)(2) of the
Immigration and Nationality Act, as amended by this Act.
(b) Legal Effect of Convention Adoption Finalized in Another
Convention Country.--A final adoption in another Convention country,
certified by the Secretary of State pursuant to subsection (a) of this
section or section 303(c), shall be recognized as a final valid
adoption for purposes of all Federal, State, and local laws of the
United States.
(c) Condition on Finalization of Convention Adoption by State
Court.--In the case of a child who has entered the United States from
another Convention country for the purpose of adoption, a State court
may not issue an order declaring the adoption final unless the
Secretary of State has issued the certificate provided for in
subsection (a) with respect to the adoption.
SEC. 302. IMMIGRATION AND NATIONALITY ACT AMENDMENTS RELATING TO
CHILDREN ADOPTED FROM CONVENTION COUNTRIES.
(a) Definition of Child.--Section 101(b)(1) of the Immigration and
Nationality Act (8 U.S.C. 1101(b)(1)) is amended--
(1) by striking ``or'' at the end of subparagraph (E);
(2) by striking the period at the end of subparagraph (F) and
inserting ``; or''; and
(3) by adding after subparagraph (F) the following new
subparagraph:
``(G) a child, under the age of sixteen at the time a
petition is filed on the child's behalf to accord a
classification as an immediate relative under section 201(b),
who has been adopted in a foreign state that is a party to the
Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption done at The Hague on May 29,
1993, or who is emigrating from such a foreign state to be
adopted in the United States, by a United States citizen and
spouse jointly, or by an unmarried United States citizen at
least twenty-five years of age--
``(i) if--
``(I) the Attorney General is satisfied that
proper care will be furnished the child if
admitted to the United States;
``(II) the child's natural parents (or
parent, in the case of a child who has one sole
or surviving parent because of the death or
disappearance of, abandonment or desertion by,
the other parent), or other persons or
institutions that retain legal custody of the
child, have freely given their written
irrevocable consent to the termination of their
legal relationship with the child, and to the
child's emigration and adoption;
``(III) the child is not the grandchild,
niece, nephew, brother, sister, aunt, uncle, or
first cousin of one or both of the adopting
parents, unless--
``(aa) the child has no living
parents because of the death or
disappearance of, abandonment or
desertion by, separation from, or loss
of, both parents; or
``(bb) the sole or surviving parent
is incapable of providing the proper
care for the child and has in writing
irrevocably released the child for
emigration and adoption; and
``(IV) in the case of a child who has not
been adopted--
``(aa) the competent authority of the
foreign state has approved the child's
emigration to the United States for the
purpose of adoption by the prospective
adoptive parent or parents; and
``(bb) the prospective adoptive
parent or parents has or have complied
with any pre-adoption requirements of
the child's proposed residence; and
``(ii) except that no natural parent or prior
adoptive parent of any such child shall thereafter, by
virtue of such parentage, be accorded any right,
privilege, or status under this Act.''.
(b) Approval of Petitions.--Section 204(d) of the Immigration and
Nationality Act (8 U.S.C. 1154(d)) is amended--
(1) by striking ``(d)'' and inserting ``(d)(1)'';
(2) by striking ``section 101(b)(1)(F)'' and inserting
``subparagraph (F) or (G) of section 101(b)(1)''; and
(3) by adding at the end the following new paragraph:
``(2) Notwithstanding the provisions of subsections (a) and (b), no
petition may be approved on behalf of a child defined in section
101(b)(1)(G) unless the Secretary of State has certified that the
central authority of the child's country of origin has notified the
United States central authority under the convention referred to in
such section 101(b)(1)(G) that a United States citizen habitually
resident in the United States has effected final adoption of the child,
or has been granted custody of the child for the purpose of emigration
and adoption, in accordance with such convention and the Intercountry
Adoption Act of 2000.''.
(c) Definition of Parent.--Section 101(b)(2) of the Immigration and
Nationality Act (8 U.S.C. 1101(b)(2)) is amended by inserting ``and
paragraph (1)(G)(i)'' after ``second proviso therein)''.
SEC. 303. ADOPTIONS OF CHILDREN EMIGRATING FROM THE UNITED STATES.
(a) Duties of Accredited Agency or Approved Person.--In the case of a
Convention adoption involving the emigration of a child residing in the
United States to a foreign country, the accredited agency or approved
person providing adoption services, or the prospective adoptive parent
or parents acting on their own behalf (if permitted by the laws of such
other Convention country in which they reside and the laws of the State
in which the child resides), shall do the following:
(1) Ensure that, in accordance with the Convention--
(A) a background study on the child is completed;
(B) the accredited agency or approved person--
(i) has made reasonable efforts to actively
recruit and make a diligent search for
prospective adoptive parents to adopt the child
in the United States; and
(ii) despite such efforts, has not been able
to place the child for adoption in the United
States in a timely manner; and
(C) a determination is made that placement with the
prospective adoptive parent or parents is in the best
interests of the child.
(2) Furnish to the State court with jurisdiction over the
case--
(A) documentation of the matters described in
paragraph (1);
(B) a background report (home study) on the
prospective adoptive parent or parents (including a
criminal background check) prepared in accordance with
the laws of the receiving country; and
(C) a declaration by the central authority (or other
competent authority) of such other Convention country--
(i) that the child will be permitted to enter
and reside permanently, or on the same basis as
the adopting parent, in the receiving country;
and
(ii) that the central authority (or other
competent authority) of such other Convention
country consents to the adoption, if such
consent is necessary under the laws of such
country for the adoption to become final.
(3) Furnish to the United States central authority--
(A) official copies of State court orders certifying
the final adoption or grant of custody for the purpose
of adoption;
(B) the information and documents described in
paragraph (2), to the extent required by the United
States central authority; and
(C) any other information concerning the case
required by the United States central authority to
perform the functions specified in subsection (c) or
otherwise to carry out the duties of the United States
central authority under the Convention.
(b) Conditions on State Court Orders.--A State court shall not enter
an order declaring an adoption to be final or granting custody for the
purpose of adoption in a case described in subsection (a) unless the
court--
(1) has received and verified to the extent the court may
find necessary--
(A) the material described in subsection (a)(2); and
(B) satisfactory evidence that the requirements of
Articles 4 and 15 through 21 of the Convention have
been met; and
(2) has determined that the adoptive placement is in the
child's best interests.
(c) Duties of the Secretary of State.--In a case described in
subsection (a), the Secretary, on receipt and verification as necessary
of the material and information described in subsection (a)(3), shall
issue, as applicable, an official certification that the child has been
adopted or a declaration that custody for purposes of adoption has been
granted, in accordance with the Convention and this Act.
(d) Filing with Registry Regarding Nonconvention Adoptions.--
Accredited agencies, approved persons, and other persons, including
governmental authorities, providing adoption services in an
intercountry adoption not subject to the Convention that involves the
emigration of a child from the United States shall file information
required by regulations jointly issued by the Attorney General and the
Secretary of State for purposes of implementing section 102(e).
TITLE IV--ADMINISTRATION AND ENFORCEMENT
SEC. 401. ACCESS TO CONVENTION RECORDS.
(a) Preservation of Convention Records.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary, in consultation with
the Attorney General, shall issue regulations that establish
procedures and requirements in accordance with the Convention
and this section for the preservation of Convention records.
(2) Applicability of notice and comment rules.--Subsections
(b), (c), and (d) of section 553 of title 5, United States
Code, shall apply in the development and issuance of
regulations under this section.
(b) Access to Convention Records.--
(1) Prohibition.--Except as provided in paragraph (2), the
Secretary or the Attorney General may disclose a Convention
record, and access to such a record may be provided in whole or
in part, only if such record is maintained under the authority
of the Immigration and Nationality Act and disclosure of, or
access to, such record is permitted or required by applicable
Federal law.
(2) Exception for administration of the convention.--A
Convention record may be disclosed, and access to such a record
may be provided, in whole or in part, among the Secretary, the
Attorney General, central authorities, accredited agencies, and
approved persons, only to the extent necessary to administer
the Convention or this Act.
(3) Penalties for unlawful disclosure.--Unlawful disclosure
of all or part of a Convention record shall be punishable in
accordance with applicable Federal law.
(c) Access to Non-Convention Records.--Disclosure of, access to, and
penalties for unlawful disclosure of, adoption records that are not
Convention records, including records of adoption proceedings conducted
in the United States, shall be governed by applicable State law.
SEC. 402. DOCUMENTS OF OTHER CONVENTION COUNTRIES.
Documents originating in any other Convention country and related to
a Convention adoption case shall require no authentication 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.
SEC. 403. AUTHORIZATION OF APPROPRIATIONS; COLLECTION OF FEES.
(a) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated such
sums as may be necessary to agencies of the Federal Government
implementing the Convention and the provisions of this Act.
(2) Availability of funds.--Amounts appropriated pursuant to
paragraph (1) are authorized to remain available until
expended.
(b) Assessment of Fees.--
(1) The Secretary may charge a fee for new or enhanced
services that will be undertaken by the Department of State to
meet the requirements of this Act with respect to intercountry
adoptions under the Convention and comparableservices with
respect to other intercountry adoptions. Such fee shall be prescribed
by regulation and shall not exceed the cost of such services.
(2) Fees collected under paragraph (1) shall be retained and
deposited as an offsetting collection to any Department of
State appropriation to recover the costs of providing such
services.
(3) Fees authorized under this section shall be available for
obligation only to the extent and in the amount provided in
advance in appropriations Acts.
(c) Restriction.--No funds collected under the authority of this
section may be made available to an accrediting entity to carry out the
purposes of this Act.
SEC. 404. ENFORCEMENT.
(a) Civil Penalties.--Any person who--
(1) violates section 201;
(2) makes a false or fraudulent statement or
misrepresentation of material fact, or offers, gives, solicits,
or accepts inducement by way of compensation intended to
influence or affect in the United States or a foreign country--
(A) a decision by an accrediting entity with respect
to the accreditation of an agency or approval of a
person under title II;
(B) the relinquishment of parental rights or parental
consent relating to the adoption of a child in a case
subject to the Convention; or
(C) a decision or action of any entity performing a
central authority function; or
(3) engages another person as an agent, whether in the United
States or in a foreign country, who in the course of that
agency takes any of the actions described in paragraph (1) or
(2),
shall be subject, in addition to any other penalty that may be
prescribed by law, to a civil money penalty of not more than $50,000
for a first violation, and not more than $100,000 for each succeeding
violation.
(b) Civil Enforcement.--
(1) Authority of attorney general.--The Attorney General may
bring a civil action to enforce subsection (a) against any
person in any United States district court.
(2) Factors to be considered in imposing penalties.--In
imposing penalties the court shall consider the gravity of the
violation, the degree of culpability of the defendant, and any
history of prior violations by the defendant.
(c) Criminal Penalties.--Whoever knowingly and willfully violates
paragraph (1) or (2) of subsection (a) shall be subject to a fine of
not more than $250,000, imprisonment for not more than 5 years, or
both.
TITLE V--GENERAL PROVISIONS
SEC. 501. RECOGNITION OF CONVENTION ADOPTIONS.
Subject to Article 24 of the Convention, adoptions concluded between
two other Convention countries that meet the requirements of Article 23
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. Such recognition
shall include the specific effects described in Article 26 of the
Convention.
SEC. 502. SPECIAL RULES FOR CERTAIN CASES.
(a) Authority to Establish Alternative Procedures for Adoption of
Children by Relatives.--To the extent consistent with the Convention,
the Secretary may establish by regulation alternative procedures for
the adoption of children by individuals related to them by blood,
marriage, or adoption, in cases subject to the Convention.
(b) Waiver Authority.--
(1) In general.--Notwithstanding any other provision of this
Act, to the extent consistent with the Convention, the
Secretary may, on a case-by-case basis, waive applicable
requirements of this Act or regulations issued under this Act,
in the interests of justice or to prevent grave physical harm
to the child.
(2) Nondelegation.--The authority provided by paragraph (1)
may not be delegated.
SEC. 503. RELATIONSHIP TO OTHER LAWS.
(a) Preemption of Inconsistent State Law.--The Convention and this
Act shall not be construed to preempt any provision of the law of any
State or political subdivision thereof, or prevent a State or political
subdivision thereof from enacting any provision of law with respect to
the subject matter of the Convention or this Act, except to the extent
that such provision of State law is inconsistent with the Convention or
this Act, and then only to the extent of the inconsistency.
(b) Applicability of the Indian Child Welfare Act.--The Convention
and this Act shall not be construed to affect the application of the
Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).
SEC. 504. NO PRIVATE RIGHT OF ACTION.
The Convention and this Act shall not be construed to create a
private right of action to seek administrative or judicial relief,
except to the extent expressly provided in this Act.
SEC. 505. EFFECTIVE DATES; TRANSITION RULE.
(a) Effective Dates.--
(1) Provisions effective upon enactment.--Sections 2, 3, 101
through 103, 202 through 205, 401(a), 403, 503, and 505(a)
shall take effect on the date of the enactment of this Act.
(2) Provisions effective upon the entry into force of the
convention.--Subject to subsection (b), the provisions of this
Act not specified in paragraph (1) shall take effect upon the
entry into force of the Convention for the United States
pursuant to Article 46(2)(a) of the Convention.
(b) Transition Rule.--The Convention and this Act shall not apply--
(1) in the case of 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
the child is filed before the effective date described in
subsection (a)(2); or
(2) in the case of a child emigrating from the United States,
if the prospective adoptive parents of the child initiated the
adoption process in their country of residence with the filing
of an appropriate application before the effective date
described in subsection (a)(2).
Background and Purpose
Over the course of the last ten years, U.S. families have
increasingly been built through intercountry adoptions. Between
1989 and 1999 the number of children being adopted by U.S.
families doubled, from nearly 8,000 to more than 16,000
annually, with a total of over 85,000 children from other
countries being adopted during that period. Most intercountry
adoptions result in the successful placement of happy, well
adjusted children with parents who will love and care for them,
and the majority of leading international adoption agencies
maintain high ethical and professional standards.
As intercountry adoptions have increased, however, abusive
practices have become more prevalent. Abuses by less reputable
agencies range from the charging of exorbitant fees by so-
called ``facilitators'' in some countries to even cases of
child kidnaping and coerced parental consent. They include
situations in which adoptive families are poorly prepared for
their parenting responsibilities, and instances in which
information has been improperly withheld from these families
with regard to the child's medical or psychological condition.
During a staff fact-finding trip to Paraguay, for example,
consular officials at the U.S. embassy at Asuncion described
cases from the mid-1990's involving coaching of women to
fraudulently represent themselves as birth mothers and even
murders of birth mothers by criminal organizations after birth
mothers changed their minds about placement. During some years,
fully half of all applications for an immigrant visa related to
an intercountry adoption were rejected by the Embassy because
of suspected fraud.
Abuses are not limited to Latin America. Stories in the
press and relayed by prospective adoptive parents also
described the deceptive practices of so-called ``facilitators''
in countries of Eastern Europe. Medical records are often not
given to the prospective adoptive parents before they travel,
or are incomplete, and the parents only learn upon arrival of
significant medical problems. Other times, upon arrival,
prospective adoptive parents are told that the child they
thought they were adopting had already been adopted, but that
another child (often with undisclosed medical or developmental
problems) is ``available.''
To combat these abuses, representatives from countries
around the world gathered under the auspices of the Hague
Conference on Private International Law to draft a treaty to
establish internationally agreed upon norms and procedures for
international adoptions. The goal of the negotiations was to
adopt a convention to protect the children, birth parents and
adoptive parents involved in the intercountry adoptions.
Over 65 countries participated in the negotiations, among
them the United States and virtually all major states of origin
and other major receiving states. The final text of the
Convention was adopted on May 29, 1993, and the Convention
entered into force on May 1, 1995. The United States signed the
Convention on March 31, 1994.
The Convention provides a formal approval process for
intercountry adoptions; establishes a minimum set of standards
governing international adoptions; establishes a central
authority in each Convention country that can provide reliable
information regarding international adoptions; creates
reasonable certainty that an adoption decree from a foreign
court will be recognized in the receiving state; and creates a
system that will allow tracking of children who leave the state
of origin for adoption by persons resident abroad.
Between 1994 and 1998, the Clinton Administration convened
an interagency group which drafted implementing legislation for
the Convention, with input from various elements within the
adoption community.
The Administration submitted implementing legislation on
June 11, 1998, and resubmitted it on May 12, 1999. Congress
took an immediate interest in this issue and the legislation.
After extensive discussions, Chairman Gilman introduced, on
September 22, 1999, H.R. 2909, the Intercountry Adoption Act of
1999, a bipartisan measure with 36 original cosponsors
representing all points on the ideological spectrum. (An
additional 15 members cosponsored the bill by the time of the
filing of this report, for a total of 51 cosponsors.)
The Committee took extensive testimony and received
numerous communications regarding the legislation, voicing both
support and concerns regarding the text as introduced. In an
effort to move this legislation expeditiously, a working group
was formed representing members from the Committees of
jurisdiction in both the House and the Senate to try to achieve
convergence between H.R. 2909 and the legislation introduced by
Senators Helms and Landrieu, S. 682. The result of these
discussions was an agreement to bring amendments to the
relevant committees in both chambers that would revise both
bills with substantially identical text. The guiding principle
for these discussions was to write legislation to implement
only the requirements of the Convention and not to reach beyond
those obligations.
Prompt U.S. ratification and implementation of the Hague
Convention is of enormous importance to many thousands of needy
children throughout the world who cannot be placed for adoption
in their countries of origin. U.S. ratification will signal to
other nations our willingness to help provide homes for these
children through intercountry adoption and U.S. commitment to
creating a legal framework that will better protect them and
their families from the various abuses that gave rise to the
Convention. By requiring greater disclosure to adoptive
families and mandating tough, more uniform standards for those
who provide international adoption services, the Convention
will help eliminate these problems and enable both birth
parents and adoptive families to participate in the
intercountry adoption process with confidence and a greater
sense of security. Indeed, these protections are deemed so
vital that some countries that have ratified the Convention
will only allow placements with citizens of other countries
that have ratified the Convention.
Committee Action
H.R. 2909 was introduced by Representative Gilman on
September 22, 1999, with 36 co-sponsors.The bill was referred
to the Committee on International Relations, with additional referrals
to the Committees on the Judiciary, Education and Workforce, and,
subsequently, Ways and Means.
On October 29, 1999, the Committee took testimony from the
Assistant Secretary for Consular Affairs in the Department of
State, from the Department of Health and Human Services, and
from private witnesses representing adoption agencies, adoptive
parents, international adoptees, medical experts, and an
organization responsible for accrediting social service
agencies.
The Committee on International Relations marked up the bill
in open session, pursuant to notice, on March 22, 2000. During
its consideration, the Committee agreed to an amendment in the
nature of a substitute offered by Mr. Gilman (for himself, Mr.
Gejdenson, Mr. Burr, Mr. Delahunt, Mr. Ballenger and Mr.
Pomeroy). The amendment was agreed to by voice vote.
Subsequently, the Committee agreed to a motion offered by Mr.
Bereuter to favorably report the bill, as amended, to the House
of Representatives by a vote of 28-0.
record votes on amendments and motion to report
Clause (3)(b) of rule XIII of the Rules of the House of
Representatives requires that the results of each record vote
on an amendment or motion to report, together with the names of
those voting for or against, be printed in the committee
report.
description of amendment, motion, order, or other proposition
(Votes during markup of H.R. 2909--March 22, 2000)
Vote No. 1.--Bereuter motion to favorably report to the
House of Representatives H.R. 2909, as amended.
Voting Aye: Gilman, Goodling, Bereuter, Smith, Ballenger,
Manzullo, King, Chabot, Sanford, Salmon, McHugh, Burr, Gillmor,
Cooksey, Tancredo, Gejdenson, Payne, Hastings, Danner,
Hilliard, Sherman, Rothman, Davis, Pomeroy, Delahunt, Lee,
Crowley, and Hoeffel.
Voting No: none.
Ayes, 28. Noes, 0.
Other Matters
committee oversight findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this
report.
committee on government reform findings
Clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives requires each Committee report to contain a
summary of the oversight findings and recommendations made by
the Government Reform Committee pursuant to clause (4)(c)(2) of
rule X of those Rules. The Committee on International Relations
has received no such findings or recommendations from the
Committee on Government Reform.
advisory committee statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
applicability to the legislative branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
constitutional authority statement
In compliance with clause 3(d)(1) of rule XIII of the Rules
of the House of Representatives, the Committee cites the
following specific powers granted to the Congress in the
Constitution as authority for enactment of H.R. 2909 as
reported by the Committee: Article I, section 8, clause 1
(relating to providing for the common defense and general
welfare of the United States); Article I, section 8, clause 3
(relating to the regulation of commerce with foreign nations);
and Article I, section 8, clause 18 (relating to making all
laws necessary and proper for carrying into execution powers
vested by the Constitution in the Government of the United
States or in any department or Officer thereof).
preemption clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any committee on a bill or joint
resolution to include a committee statement on the extent to
which the bill or joint resolution is intended to preempt State
or local law.
In general, requirements in the Act are in addition to any
requirements in State law, but do not displace them. States may
not adopt laws inconsistent with the Act, however, in areas
where the Act provides a particular rule. For example, the
requirements for accreditation of agencies and approval of
persons in title II will not deprive the States of authorities
to license adoption agencies, but such agencies will not be
able to provide adoption services in casesinvolving another
country that has ratified the Hague Convention unless it has been
accredited under this Act.
Sections 301 and 303 place certain limitations on States
regarding intercountry adoptions subject to this Act and
requires recognition of adoption decrees issued by foreign
government authorities if certified by the Secretary of State;
this also involves preempting otherwise applicable State law.
These provisions are discussed more fully in the section-
by-section analysis.
new budget authority and tax expenditures, congressional budget office
cost estimate, and federal mandates statements
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives requires each Committee report that accompanies
a measure providing new budget authority, new spending
authority, or new credit authority or changing revenues or tax
expenditures to contain a cost estimate, as required by section
308(a)(1) of the Congressional Budget Act of 1974, as amended,
and, when practicable with respect to estimates of new budget
authority, a comparison of the estimated funding level for the
relevant program (or programs) to the appropriate levels under
current law.
Clause 3(d) of rule XIII of the Rules of the House of
Representatives requires Committees to include their own cost
estimates in certain Committee reports, which include, when
practicable, a comparison of the total estimated funding level
for the relevant program (or programs) with the appropriate
levels under current law.
Clause 3(c)(3) of rule XIII of the Rules of the House of
Representatives requires the report of any Committee on a
measure which has been approved by the Committee to include a
cost estimate prepared by the Director of the Congressional
Budget Office, pursuant to section 403 of the Congressional
Budget Act of 1974, if the cost estimate is timely submitted.
Section 423 of the Congressional Budget Act requires the
report of any committee on a bill or joint resolution that
includes any Federal mandate to include specific information
about such mandates. The Committee states that H.R. 2909 does
not include any such mandate.
The Committee adopts the cost estimate of the Congressional
Budget Office as its own submission of any new required
information with respect to H.R. 2909 on new budget authority,
new spending authority, new credit authority, or an increase or
decrease in the national debt. It also adopts the estimate of
Federal mandates prepared by the Director of the Congressional
Budget Office pursuant to section 423 of the Unfunded Mandates
Reform Act. The estimate and report that has been received is
set out below.
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 7, 2000.
Hon. Benjamin A. Gilman,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2909 the
Intercountry Adoption Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte.
Sincerely,
Steven Lieberman
(For Dan L. Crippen, Director).
Enclosure.
H.R. 2909--Intercountry Adoption Act of 2000
Summary: H.R. 2909 would authorize the United States to
implement the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption and would
authorize appropriations for that purpose. CBO estimates that
those discretionary costs would be less than $500,000 a year
over the 2001-2005 period, assuming appropriation of the
necessary amounts. The bill has other provisions that would
affect governmental receipts (revenues) and direct spending,
but CBO estimates that those effects would be insignificant.
Because enactment of H.R. 2909 would affect receipts and direct
spending, pay-as-you-go procedures would apply.
Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from application of that act bills that would be
necessary for the ratification or implementation of
international treaty obligations. CBO has determined that the
provisions of H.R. 2909 would implement the Convention on
Protection of Children and Co-operation in Respect of
Intercountry Adoption and would thus fall within that
exclusion.
Estimated cost to the Federal Government: For purposes of
this estimate, CBO assumes that the initial appropriations for
H.R. 2909 would be provided in fiscal year 2001 and that
outlays would follow historical spending patterns. The costs of
this legislation fall within budget function 150 (international
relations) and 750 (administration of justice).
Spending subject to appropriation
The bill would provide an open-ended authorization of
appropriations for the Departments of State and Justice to meet
the requirements of the bill and would authorize new consular
fees, which the State Department could spend subject to
appropriation action. CBO estimates that the net cost of
implementing the bill would be less than $500,000 annually over
the 2001-2005 period.
Department of State. H.R. 2909 would designate the State
Department as the central authority responsible for
coordinating and implementing international adoptions under the
convention. Under current law, the State Department has no
routine role in international adoptions. When it does act, it
is usually in response to requests from the adopters. The bill
would establish an official role for the department and require
it to:
Enter into agreements with nonprofit
organizations that would accredit and monitor adoption
agencies that would provide services under the
convention.
Monitor the performance of accreditation
agencies.
Monitor and facilitate individual cases of
adoption under the convention.
Provide the Congress with an annual report
on international adoptions and the implementation of
the convention.
Establish a registry of all international
adoptions, and
Issue certificates when an adoption under
the convention has been finalized.
Based on information from the State Department, CBO
estimates the department would spend approximately $4 million a
year to carry out those responsibilities. This estimate
includes costs for hiring personnel and contractors and
implementing a computerized tracking system to monitor
individual adoption cases. To recover those costs, the bill
would allow the department to charge a new fee for its services
and to retain and spend any collections on consular services,
subject to appropriation action. CBO estimates the department
would charge a $200 fee on approximately 20,000 cases each
year.
Civil and Criminal Prosecutions. Violators of the
provisions of H.R. 2909 would be subject to civil penalties and
criminal prosecution. As a result, the federal government would
be able to pursue cases that it otherwise would not be able to
prosecute. CBO expects that any increase in federal costs for
law enforcement, court proceedings, or prison operations would
not be significant, however, because of the small number of
cases likely to be involved.
Direct spending and revenues
Because violators of the provisions of H.R. 2909 could be
subject to criminal and civil fines, the federal government
might collect additional fines if the bill is enacted.
Collections of criminal fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and spent in subsequent years. Civil fines
are recorded as receipts and deposited into the general fund of
the Treasury. CBO expects that any additional receipts and
direct spending would be less than $500,000 each year.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. CBO
estimates that the net changes in both outlays and governmental
receipts that are subject to pay-as-you-go procedures would be
negligible.
Intergovernmental and private-sector impact: Section 4 of
UMRA excludes from application of that act bills that would be
necessary for the ratification or implementation of
international treaty obligations. CBO has determined that the
provisions of H.R. 2909 would implement the Convention on
Protection of Children and Co-operation in Respect of
Intercountry Adoption and would thus fall within that
exclusion.
Estimate prepared by: Federal Costs: International Affairs:
Sunita D'Monte; Immigration Law Enforcement: Mark Grabowicz,
Impact on State, Local, and Tribal Governments: Leo Lex, Impact
on the Private Sector: Keith Mattrick.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
jurisdictional matters
The Committee has consulted with the Committee on the
Judiciary which has rule X jurisdiction over certain matters
within the bill. We have been assured by that Committee that
the final language in the bill meets their concerns, and that,
accordingly, they would be willing to forgo formal
consideration of the bill. The Committee appreciates the
cooperation.
In addition, the following letters are included from the
Committee on Ways and Means and Education and the Workforce.
U.S. House of Representatives,
Committee on Ways and Means,
Washington, DC, June 19, 2000.
Hon. Benjamin Gilman,
Chairman, Committee on International Relations, Rayburn House Office
Building, Washington, DC.
Dear Chairman Gilman: I write with respect to H.R. 2909,
the ``Intercountry Adoption Act,'' which was ordered reported
by the Committee on International Relations on March 22, 2000.
As you know, the subject matter of adoption is of
longstanding interest to the Committee on Ways and Means.
Accordingly, agreement was reached to include in this
legislation an amendment to Title IV-B of the Social Security
Act to modify state Child Welfare plan requirements with
respect to intercountry adoptions.
Normally, the Committee on Ways and Means would meet to
consider such legislation. However, in order to expedite
consideration of H.R. 2909, I did not object to the inclusion
of this provision as part of a manager's amendment during
consideration of this bill by your Committee, and, for this
reason, it was not necessary for the Committee on Ways and
Means to meet to consider the legislation.
However, this has been done with the understanding that you
have agreed to accept no additional changes on matters of
concern to this Committee during further consideration of this
legislation. Finally, this action was done with the
understanding that it will not prejudice the jurisdictional
prerogatives of the Committee on Ways and Means on these
provisions or any other similar legislation and will not be
considered as precedent for consideration of matters of
jurisdictional interest to this Committee in the future.
I would ask that you include a copy of this letter in your
Committee Report on the legislation, as it supercedes previous
correspondence on the matter. Thank you for your assistance and
cooperation. With best personal regards.
Sincerely,
Bill Archer,
Chairman.
------
U.S. House of Representatives,
Committee on Education and the Workforce,
Washington, DC, May 24, 2000.
Hon. Benjamin A. Gilman,
Chairman, Committee on International Relations, Rayburn House Office
Building, Washington, DC.
Dear Chairman Gilman: I am writing regarding H.R. 2909, the
Intercountry Adoption Act, which is within the jurisdiction of
the Committee on International Relations and in addition the
Committee on Education and the Workforce. I have no objection
to this bill being scheduled under suspension of the House
Rules. The Committee on International Relations ordered the
bill favorably reported on March 22, 2000. Since I support the
reported bill, I do not intend to call a full Committee meeting
to consider this bill. However, I do so only with the
understanding that this procedural route should not be
construed to prejudice the Committee on Education and the
Workforce jurisdictional interest and prerogatives on these
provisions or any other similar legislation and will not be
considered as precedent for consideration of matters of
jurisdictional interest to my Committee in the future. As such,
members of the Education and the Workforce would expect to be
represented should the provisions of this bill be considered in
a conference with the Senate.
I would appreciate the inclusion of this letter in the
report you file to accompany this bill. I thank you for your
attention to this matter and look forward to swift passage of
H.R. 2909.
Sincerely,
Bill Coodling,
Chairman.
Section-by-Section Analysis
Sec. 1. Short title; table of contents
This section provides the bill's short title and table of
contents.
Sec. 2. Findings and purposes
This section describes the purposes of the legislation: to
implement the Hague Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption (the
``Convention'') (done at the Hague on May 29, 1993), to protect
the rights of, and prevent abuses against, children, birth
families, and adoptive parents involved in adoptions subject to
the Convention, and to ensure that such adoptions are in the
children's best interests; and to improve the ability of the
Federal Government to assist U.S. citizens seeking to adopt
children from abroad and residents of other Convention
countries seeking to adopt children from the United States.
Sec. 2. Definitions
This section defines various terms used in the Act. The
Committee amended the definition of ``adoption services'' by
deleting the subparagraphs relating to counseling and post-
adoption services. There are a broad range of individuals who
perform counseling of prospective adoptive parents, adoptive
parents, and adopted children at various points in the adoption
process, including after the adoption is finalized. Otherwise
such individuals do not provide other adoption services, and
the Committee has determined that there should be no
requirement for accreditation or approval for anyone engaged in
such counseling. Similarly, post-adoption services often
address matters that are not related to the adoption itself,
such as cultural and educational activities in connection with
the adopted child's state of origin.
TITLE I--UNITED STATES CENTRAL AUTHORITY
Sec. 101. Authority of the Department of State
Subsection (a) designates the Department of State as the
United States Central Authority for purposes of carrying out
U.S. obligations under the Convention.
Subsection (b) provides that the Secretary of State shall
be responsible for the performance of all central authority
functions of the United States under the Convention and the
Act, except as otherwise specified in the Act. It also requires
that personnel hired by the State Department to carry out these
new responsibilities have some professional experience with
consular or child services, or personal or professional
experience in the field of international adoption. These duties
are new to the Department of State. Therefore, hiring of
experienced, motivated staff will facilitate the implementation
of the new obligations and responsibilities. The Committee is
interested in the State Department providing the best possible
service to the prospective adoptive parents and others involved
in the adoption process.
Subsection (c) authorizes the Secretary of State to
prescribe regulations to carry out central authority functions
on behalf of the United States.
Sec. Responsibilities of the Secretary of State
Subsection (a) provides that the Secretary of State shall
be responsible for liaison with the central authorities of
other Convention countries and the coordination of Convention
activities by persons subject to U.S. jurisdiction.
Subsection (b) provides that the Secretary of State shall
be responsible for providing information, and facilitating the
transmittal and exchange of information, to and among the
central authorities of other Convention countries, Federal and
State agencies (including state courts) within the United
States, and agencies accredited and persons approved under
title II of the Act to provide adoption services in the United
States in cases subject to the Convention.
Subsection (c) provides that the Secretary of State shall
carry out the functions prescribed by the Convention with
respect to the accreditation of agencies and the approval of
persons to provide adoption services in the United States in
cases subject to the Convention as provided in title II of this
Act. It also provides that the Secretary of State may not
delegate this authority to any other Federal agency. The text
of H.R. 2909 as referred to the Committee vested this
responsibility in the Secretary of Health and Human Services.
In the amendment in the nature of a substitute by the
Committee, this responsibility was conferred on the Secretary
of State. This decision reflected the judgment that neither the
Department of State nor the Department of Health and Human
Services had any capacity in the area of accreditation of
adoption agencies and therefore whichever agency received this
responsibility would have to develop such capacity; the
Department of State is already the primary agency with regard
to most other central authority functions; and the assignment
of responsibilities under this Act to the Departments of State
and Justice (as opposed to three federal agencies) would create
a more streamlined interagency coordination process.
Subsection (d) provides that the Secretary of State shall
monitor individual adoption cases involving U.S. citizens, may
facilitate interactions between U.S. citizens and officials of
other Convention countries in any case in which an accredited
agency or approved person is unwilling or unable to do so, and
may provide any other appropriate assistance in other cases.
Subsection (e) provides that the Secretary of State and the
Attorney General shall jointly establish a case registry to
track all adoptions involving immigration of the child into the
United States (regardless of whether the adoption occurs under
the Convention) and all adoptions involving emigration of the
child from the United States to any other Convention country.
This registry shall be for the purpose of easing administration
of the Act and the Convention so thatFederal agencies and
prospective adoptive parents can determine the status of particular
cases and for the purpose of creating a system to track children who
leave the United States to be adopted abroad. The information in the
registry should be tailored to these purposes, and would be subject to
release to persons outside the relevant Federal agencies only in
accordance with Federal law regarding Federal records, such as the
Privacy Act.
Subsection (f) provides that the Secretary of State may
authorize public or private entities to perform appropriate
central authority functions for which the Secretary is
responsible, pursuant to regulations or under agreements
published in the Federal Register, and may carry out such
functions through grants to, or contracts with, such entities.
However, this authority needs to be read in conjunction with
subsection (c), which prohibits the delegation of any
authorities regarding that subsection to any other Federal
agency. The Committee does not intend that subsection (f)
permit delegation of the authorities described in subsection
(c) to any Federal agency.
Sec. 103. Responsibilities of the Attorney General
This section provides that the Attorney General shall
perform the central authority functions specified in Article 14
of the Convention, which requires prospective adoptive parents
to apply to the central authority of their country of
residence.
Sec. 104. Annual report on intercountry adoptions
This section requires the Secretary of State, in
consultation with the Attorney General and other appropriate
agencies, to submit an annual report to House and Senate
Committees describing the activities of the U.S. Central
Authority. The report must include information on intercountry
adoptions involving immigration to and emigration from the
United States; disruption rates for Convention adoptions and
certain information provided by the states regarding
dissolution rates (as required by sec. 205); the average time
required for the completion of a Convention adoption; a list of
agencies accredited and persons approved to provide adoption-
related services; the names of agencies and persons debarred
from accreditation or approval; the range of adoption fees
charged in connection with Convention adoptions; and the range
of fees charged for accreditation of agencies and the approval
of persons engaged in providing adoption services. The purpose
of this provision is to improve the type of data collected; to
develop a data base on intercountry adoptions, and to increase
access to information that may be of interest to the Congress,
the public or prospective adoptive parents.
TITLE II--PROVISIONS RELATING TO ACCREDITATION AND APPROVAL
Sec. 201. Accreditation or approval required in order to provide
adoption services in cases subject to the Convention
This section provides that no person shall offer or provide
adoption services in the United States in a case subject to the
Convention unless that person is accredited or approved under
this title, or is providing the services through or under the
supervision and responsibility of an agency or person so
accredited or approved. This requirement does not apply to: (1)
a social work professional or organization that provides only
the background or home study, or the report on such a study, as
long as the background or home study is approved by an
accredited agency; (2) an entity that provides only child
welfare services in connection with a case subject to the
Convention; (3) a person who provides only legal services
(rather than adoption services) in connection with a case
subject to the Convention; or (4) U.S. prospective adoptive
parents acting on their own behalf, to the extent permitted by
the law of the State in which they reside.
The Committee does not intend to alter the current practice
followed by some prospective adoptive parents of obtaining a
home or background study prior to the actual selection of a
placing agency. A home study completed by a social worker or an
agency who is not accredited or approved under this Act may be
used during such initial stages of the intercountry adoption
process. However, at the point where a placing agency is
selected and a placement is imminent, such a home or background
study is still required to be approved by an accredited agency.
Sec. 202. Process for accreditation and approval; role of accrediting
entities
Subsection (a) provides that the Secretary of State shall
designate one or more qualified private, nonprofit entities as
accrediting entities responsible for the accreditation of
agencies and approval of other persons providing adoption
services under the Convention. This is a critical
responsibility under the Convention and this Act, and this
section provides that the Secretary may select the best private
or public entity or entities for this purpose. However, the
Committee is concerned that an accrediting entity designated by
the Secretary pursuant to this section not use the authority
granted by this section to, in effect, require an agency or
person seeking accreditation or approval to use the accrediting
entity's other services if such services are not essential to
the accreditation process and the agency is not seeking such
services. The Secretary of State should ensure that no such
``leverage'' is used, and the Committee intends to review the
practices of the accrediting entity or entities carefully in
this regard.
Subsection (b) sets forth the responsibilities of
accrediting entities, including accreditation and approval,
monitoring of the compliance of accredited agencies and
approved persons with applicable requirements (including review
of complaints), the imposition of sanctions for noncompliance,
and record keeping and reporting.
Subsection (c) provides remedies for adverse action by an
accrediting entity. The subject of the action may re-apply for
accreditation or approval upon demonstrating to the
satisfaction of the accrediting entity that the deficiencies
resulting in the adverse action have been corrected, and may
appeal the adverse action in Federal district court. The
adverse action is not subject to administrative review, but an
agency or person who is subject to the adverse action may seek
judicial review under the standards applicable to a federal
agency under the Administrative Procedure Act.
Subsection (d) requires that fees set by accredited
agencies and approved persons must be approved by the Secretary
of State, may not exceed the costs of accreditation, and must
take into account the relative size of, the geographic location
of, and the number of convention adoption cases managed by the
agency or approved person. We understand that certain entities
that provide accreditation services have a sliding fee scale,
based on the revenue base of the agency being accredited. In
particular, the Council on Accreditation, which currently
accredits agencies for international adoption, indicates that
it charges much lower fees to smaller agencies. The Committee
believes that the Secretary should carefully review the fees of
any qualified accrediting entity designated under this section
to ensure that smaller agencies are not charged fees that will
make it impossible for them to continue to provide intercountry
adoption services.
The Committee is also concerned about the practice by
certain accrediting entities of providing discounts to agencies
based on their affiliation with associations or organizations.
The Committee believes that any fee structure established by an
entity should not discriminate against agencies that are not
members of such associations or organizations.
Moreover, the Committee recognizes that there may be a
surge in requests for accreditation as the treaty enters into
force. The Committee believes that smaller agencies should not
be disadvantaged during this process. The State Department and
the accrediting entities should develop procedures to minimize
this risk.
This provision allows for more than one accrediting entity
to accredit agencies and approve persons. However, the
Committee is concerned that if an agency or person fails to
obtain accreditation or approval it may seek accreditation or
approval from another accrediting entity. It is the Committee's
view that regulations should provide that if an agency is
denied accreditation, or believes it will be denied
accreditation, it should not be permitted to seek accreditation
from another accrediting entity.
Sec. 203. Standards and procedures for providing accreditation or
approval
Subsection (a) requires the Secretary of State to establish
by regulation standards and procedures to be used by
accrediting entities in accrediting agencies and approving
persons to provide adoption services in the United States in
cases subject to the Convention. In developing the regulations,
the Secretary of State must consider standards and procedures
developed by outside experts, provide the opportunity for
notice and comment (consistent with 5 U.S.C. Sec. 553), and
consider the views of individuals and entities with interest
and expertise in international adoptions and family social
services. The Committee understands that an alliance of
agencies, lawyers, adoptive parents and adoptee organizations
and child welfare agencies have already drafted accreditation
standards that the alliance believes are appropriate for both
large and small agencies conducting Hague Convention adoptions.
As the regulations are drafted and prepared for public comment,
the Committee intends that the Secretary consider these
standards as well as other relevant material.
Subsection (b) sets forth certain minimum requirements
which must be included in the standards for accreditation and
approval. Many of these requirements, which agencies and
approved persons must meet prior to accreditation or approval,
are designed to improve the adoption process and protect
adoptive parents and children and to ensure that the agency or
person has the capacity to provide intercountry adoption
services and meet the other requirements of this Act.
The standards must require that an accredited agency or
approved persons: (1) provide a copy of the child's medical
records, in English if practicable, before the adoption is
completed: (2) provide prospective adoptive parents with a
training program that includes counseling and guidance to
promote a successful intercountry adoption; (3) employ
personnel providing intercountry adoption services only on a
fee for service basis; (4) fully disclose its policies and
practices and disruption rates to prospective adoptive parents;
(5) have the capacity (either directly or through arrangements
with others) to perform all adoption services in cases subject
to the Convention; (6) have procedures in place to ensure that
social service functions requiring the application of clinical
skills and judgment are performed only by qualified
professionals; (7) have the ability to comply with information
management requirements concerning record retention, reports,
reviews, inspections, and audits, and the safeguarding of
sensitive information; (8) have adequate liability insurance;
and (9) have adequate measures in place to ensure compliance
with the Convention, the Act, and any other applicable law.
With regard to that training listed about, the Committee
expects the regulations promulgated to implement this section
will provide flexibility to allow appropriate training for
parents that already have experience, such as a previous
international adoption. Recognizing that each adoption could
raise different issues because of the age, health, or
institutional care of the child, the adoption agencies should
tailor training or educational programs to the specific
circumstances of the adoption, even with respect to experienced
families to be sure they are prepared for the adoption.
In addition to the above, accredited agencies must be
private nonprofit organizations licensed to provide adoption
services in at least one State.
Accreditation or approval shall be granted for a period of
not less than three and not more than five years, and may be
renewed on a showing that the agency or person continues to
meet the applicable requirements.
Subsection (c) authorizes the Secretary to establish
through regulations issued under this section a temporary
registration system for small community based agencies. An
agency that is registered under such a system can provide
adoption services for a period of up to two years even if it
does not meet the standards in subsection (b) as long as it
satisfies the following criteria: (1)is a non-profit agency
licensed in the state where it is located; (2) has been providing
intercountry adoption services for at least five years; (3) has
provided adoption services in fewer than 20 intercountry adoptions in
the preceding calendar year; (4) has demonstrated that it will be able
to provide all information related to the annual report required under
section 104; (5) has initiated the process of becoming accredited and
is taking steps to become accredited; and (6) has not been found to be
involved in any improper conduct relating to intercountry adoptions.
This provision is intended to ensure that for two years
after the Convention enters into force, established, small
community based agencies can continue to provide services with
respect to Convention adoptions even if they do not meet the
standards in subsection (b) so long as they meet certain
standards and are actively seeking accreditation. This
provision will also have the salutary effect of allowing the
President to ratify the Convention earlier than would be
necessary if the President waits for all agencies that conduct
intercountry adoptions with Hague countries to obtain
accreditation.
Sec. 204. Secretarial oversight of accreditation and approval
Subsection (a) requires the Secretary of State to monitor
the performance of accrediting entities, and to suspend or
cancel the designation an accrediting entity if the Secretary
finds the entity to be substantially out of compliance with the
Convention, the Act, other applicable laws, or the regulations
prescribed pursuant to the Act.
Subsection (b) requires the Secretary of State to suspend
or cancel the accreditation or approval granted by an
accrediting entity if the Secretary finds that the agency or
person is substantially out of compliance with applicable
requirements and the accrediting entity has failed or refused,
after consultation with the Secretary, to take appropriate
corrective action. Once the Secretary is satisfied that the
deficiencies have been corrected, an agency or person whose
accreditation or approval has been suspended is entitled to be
reinstated, and an agency or person whose accreditation or
approval has been canceled is entitled to re-apply to the
accrediting entity for accreditation or approval.
Subsection (c) authorizes the Secretary of State to debar
an agency from accreditation or a person from approval, either
temporarily (for a minimum of three years, after which time the
agency or person may apply to the Secretary for withdrawal of
the debarment) or permanently, if there is substantial evidence
that the agency or person is out of compliance with applicable
requirements and there has been a pattern of serious, willful,
or grossly negligent failures to comply or other aggravating
circumstances indicating that continued accreditation or
approval would not be in the best interests of the children and
families concerned.
A provision in H.R. 2909 regarding judicial review was not
included in the amendment. Rather, the Committee believes that
the regime generally applicable to the review of adverse
actions by Federal agencies contained in the Administrative
Procedures Act is the appropriate framework for review of
adverse action by the Secretary under this section. Under that
Act, accrediting entities, accredited agencies, and approved
persons can seek judicial review of the Secretary's adverse
actions under standards that are well understood and have been
subject to extensive judicial interpretation.
Sec. 205. State plan requirement
This section amends Part B of Title IV of the Social
Security Act to add a requirement to State plans under that
title that States describe activities undertaken for children
adopted from other countries including the provision of
adoption and post adoption services. This amendment also
requires States to collect and report information on children
who are adopted from other countries and who enter State
custody as a result of a dissolution or disruption of an
adoption. This provision was added at the request of the Ways
and Means Committee. Information on disrupted and dissolved
adoptions should include the aggregate number of children,
special needs status, the reason for placement into state
custody, the age of the child, the agency that made adoption
arrangements, the country from which the child emigrated, and
the plans for the child.
TITLE III--RECOGNITION OF CONVENTION ADOPTIONS IN THE UNITED STATES
Sec. 301. Adoptions of children immigrating to the United States
Subsection (a) directs the Secretary of State to issue a
final adoption certificate if the Secretary receives
appropriate notification from the central authority of the
child's country of origin and has verified that the
requirements of the Act have been met with respect to the
adoption or prospective adoption. The certificate, together
with the original adoption decree, shall be treated in the
United States as conclusive evidence that a final adoption has
taken place.
Subsection (b) provides that a final adoption in another
Convention country, certified by the Secretary of State in
accordance with the Convention and the Act, shall be recognized
in the United States as a final valid adoption for the purposes
of all Federal, State, and local laws.
Subsection (c) provides that a State court shall not have
the authority to finalize the adoption of a child who has
entered the United States from another Convention country for
purposes of adoption unless the Secretary of State has issued
the certificate issue under subsection (a).
Sec. 302. Immigration and Nationality Act amendments relating to
children adopted from Convention countries
Subsection (a) amends section 101(b) of the Immigration and
Nationality Act (INA) to add children adopted in Hague
Convention countries, or emigrating from such countries, for
purposes of their adoption in the United States, as new
categories of children who may beclassified as immediate
relatives of U.S. citizens for immigration purposes. These children
would not need to meet the definition of ``orphan'' under the INA, but
other requirements of current law would continue to apply, including
those relating to age and U.S. citizenship of the adoptive parents. The
Committee has been assured that consular officers of the Department of
State and officials of the Immigration and Naturalization Service will
continue to be vigilant in identifying cases where there is fraud or
improper financial inducement related to adoptions. While the
Convention is intended to help states of origin implement protections
to end abuses in their countries, the Committee strongly believes that
both sending and receiving countries must cooperate to guarantee the
integrity of the adoption process. In particular, the Attorney General
must be satisfied that the purpose of the adoption is to form a bona
fide parent-child relationship and that the parent-child relationship
of the child and the biological parents has been permanently
terminated.
Subsection (b) amends section 204(d) of the INA to provide
that, in the case of a Convention adoption, an immigrant visa
shall not be issued to a child as an immediate relative of the
prospective adoptive parent unless the Secretary of State has
certified that the central authority of the child's country of
origin has given notice that the child has been adopted, or
custody for purposes of adoption has been granted, in
accordance with the Convention.
Subsection (c) is a conforming amendment to the definition
of ``parent'' under the INA.
Sec. 303. Adoptions of children emigrating from the United States
Subsection (a) requires, in regard to a U.S. resident child
emigrating to another Convention country for purposes of
adoption, that the accredited agency or approved person
providing adoptive services, or the prospective adoptive
parents acting on their own behalf, ensure that (1) a
background study on the child is completed in accordance with
the standards set forth in the Convention; (2) the accredited
agency or approved person has made reasonable efforts to
actively recruit and make a diligent search for adoptive
parents in the U.S., but despite such efforts, has not been
able to place the child for placement in the U.S. in a timely
manner; and (c) a determination is made that the placement is
in the best interests of the child. The subsection also
requires the agency or person to furnish the necessary
documentation to the U.S. Central Authority and the State court
with jurisdiction over the case.
The provision also requires the background report to
include a criminal background check. While the Committee
understands that local police records may vary widely, every
effort should be made to locate any criminal history that may
exist. The Committee expects that the Secretary and the
Attorney General will work with other central authorities to
improve the quality and timeliness and uniformity of such
checks.
Subsection (b) provides that a State court shall not
finalize an adoption or grant custody for the purpose of
adoption in the case of a U.S. resident child emigrating to
another Convention country for purposes of adoption unless the
court has received and verified the documents required under
the Convention, made the determinations required of the country
of origin by the Convention, and determined that the placement
is in the best interests of the child. The appropriate
authorities should closely review the background or home study
to be sure it meets the standards set forth in the Convention
under Article 15.
Subsection (c) requires the Secretary of State to issue a
certificate of adoption, or a declaration of custody for
purposes of adoption, in each case in which the requirements of
this section have been met.
Subsection (d) requires accredited agencies or approved
persons or others to file information as required by the
registry provision (section 102(e)) on non-Convention
intercountry adoptions involving emigration from the U.S.
H.R. 2909 as introduced included a provision that would
have limited the ability of State courts to void a foreign
decree related to an intercountry adoption and would have
required State courts to recognize a foreign decree voiding an
adoption decree issued in that country. This provision was
deleted by the Committee because it was determined that the
Convention does not require such a provision, and the Committee
believes that the enforcement of foreign decrees, and their
invalidation, should be left to current law regarding
recognition of foreign judgments.
TITLE IV--ADMINISTRATION AND ENFORCEMENT
Sec. 401. Access to Convention records
Subsection (a) requires the Secretary of State, in
consultation with the Attorney General, to issue regulations,
following notice and comment, that establish procedures and
requirements for the preservation of Convention records
(defined as information about a Convention adoption that has
been preserved by the Secretary of State or the Attorney
General). Records that are required to be preserved pursuant to
this subsection should be limited to only those records
necessary to implement the Convention and this Act.
Subsection (b) permits the disclosure of a Convention
record maintained under the authority of the Immigration and
Nationality Act (INA) to the adopted child or the adoptive
parents under applicable federal law. This subsection also
provides that unlawful disclosure of a Convention record will
be punishable under applicable federal law.
Subsection (b) further provides that access to a convention
record is permitted among the Secretary of State, the Attorney
General, central authorities, accredited agencies and approved
persons to the extent necessary to administer the Convention or
this Act.
Subsection (c) provides that access to non-Convention
records including records of State adoption proceedings shall
be governed by applicable State law. Penalties for unlawful
disclosure of a non-convention record shall be governed by
applicable State law.
In recent years, the issue of access to adoption records
has been extensively debated in the States, with ballot
initiatives and court cases providing the battleground. The
Committee takes no position with respect to that debate, and
does not intend to affect the extent to which access is
provided to adoption records pursuant to Federal or State law.
Under current law, Federal records that contain information
regarding intercountry adoptions are subject to Federal laws
regarding disclosure and access to information maintained by
the Federal government (such as the Privacy Act and the Freedom
of Information Act). Records regarding intercountry adoptions
that are in State custody or in the files of adoption agencies
are governed by applicable State laws. State laws regarding
access to adoption records vary from jurisdiction to
jurisdiction: some States have a restrictive regime with
respect to such records, others have an open regime, and yet
others take a variety of approaches in between. Under section
401, Federal records will continue to be governed by applicable
federal law, while non-federal records, including records of
adoption proceedings conducted in the United States, will
continue to be governed by applicable State law. No State is
required by this provision to change its laws regarding access
to and disclosure of adoption records or is precluded from
doing so.
Sec. 402. Documents of other Convention countries
This section provides that documents originating in another
Convention country and related to a Convention adoption shall
require no authentication or legalization to be admissible in
U.S. courts, unless a specific and supported claim is made that
the documents are false, have been altered, or are otherwise
unreliable.
Sec. 403. Authorization of appropriations; collection of fees
Subsection (a) authorizes appropriation of such sums as may
be necessary to agencies of the Federal Government for the
purpose of implementing the Convention and the Act, and
provides for such sums to remain available until expended.
Subsection (b) permits the Secretary of State, subject to
appropriations, to charge and retain a fee prescribed by
regulation for new or enhanced intercountry adoption services
undertaken to meet the requirements of the Act. These fees may
not exceed the costs of such services.
Sec. 404. Enforcement
This section provides for the Attorney General to seek in
an appropriate Federal district court civil money penalties of
not more than $50,000 for a first violation and not more than
$100,000 for each subsequent violation against any person who
(1) provides adoption services in the United States in
connection with Convention adoptions without proper
accreditation or approval; (2) provides false statements or
improper inducements to obtain consent to adoption or the
relinquishment of parental rights or to influence a decision of
an accrediting entity or any entity performing a central
authority function, or (3) engages another person as an agent
in the United States or abroad who takes any of the actions
described in (1) or (2) within the scope of such agency. H.R.
2909 as introduced provided for waiver of civil penalties.
However, the Committee determined that since this is a
discretionary responsibility, no express waiver authority was
required. The Committee believes that in the exercise of that
discretion the Attorney General should not seek civil money
penalties in the case of unintentional or harmless failures to
comply with the requirements of the Convention, this Act, or
implementing regulations issued under this Act. The section
also provides for criminal penalties of not more than $250,000,
imprisonment for up to 5 years, or both, for knowing and
willful violations of paragraphs (1) or (2) of subsection (a).
TITLE V--GENERAL PROVISIONS
Sec. 501. Recognition of Convention adoptions
This section provides for the recognition in the United
States of Convention adoptions concluded between two other
Convention countries before the date the Convention enters into
force for the United States.
Sec. 502. Special rules for certain cases
Subsection (a) authorizes the Secretary of State to
establish by regulation alternative procedures for the adoption
of children in Convention cases by individuals related to them
by blood, marriage or adoption. The Committee's adoption in
this list recognizes that there is and ought to be no legal
distinction between family relationships established through
the act of adoption and those derived from blood or marriage.
Subsection (b) provides that notwithstanding any other
provision of the Act, to the extent consistent with the
Convention, the Secretary of State may, on a case-by-case
basis, waive applicable requirements of, or regulations issued
under the Act, in the interests of justice or to prevent grave
physical harm to the child. This authority may not be
delegated.
Sec. 503. Relationship to other laws
Subsection (a) provides that the Convention and the Act
shall not be construed to preempt any provision of State or
local law except to the extent that any such provision is
inconsistent with either the Convention or the Act, and then
only to the extent of the inconsistency.
Subsection (b) provides that nothing in the Act shall be
construed to affect the application of the Indian Child Welfare
Act.
Sec. 504. No private right of action
This section provides that the Convention and the Act shall
not be construed to create a private right of action to seek
administrative or judicial relief, except as expressly provided
in the Act.
Sec. 505. Effective dates; transition rule
Subsection (a)(1) provides that specific provisions of the
Act are to become effective immediately upon enactment, so that
various preparatory steps can be taken before the Convention's
entry into force for the United States, including the
establishment of the U.S. Central Authority and a case tracking
system, designation by the Secretary of State of accrediting
entities, and issuance by the Secretary of State of regulations
to establish standards and procedures for accreditation and
approval.
Subsection (a)(2) provides that the remaining provisions of
the Act shall take effect upon the entry into force of the
Convention for the United States, and that the substantive
provisions of the Act will govern Convention adoptions that are
finalized after that date.
Subsection (b) provides that the Convention and the Act
shall not govern adoption cases (1) initiated by the filing of
an orphan petition or petition to classify an orphan as an
immediate relative before the Convention's entry into force for
the United States, or (2) involving foreign nationals seeking
to adopt children resident in the United States, where the
prospective adoptive parents initiated an adoption application
in their home country before the Convention's entry into force
for the United States.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 422 OF THE SOCIAL SECURITY ACT
STATE PLANS FOR CHILD WELFARE SERVICES
Sec. 422. (a) * * *
(b) Each plan for child welfare services under this subpart
shall--
(1) * * *
* * * * * * *
(11) contain a description, developed after
consultation with tribal organizations (as defined in
section 4 of the Indian Self-Determination and
Education Assistance Act) in the State, of the specific
measures taken by the State to comply with the Indian
Child Welfare Act; [and]
(12) contain assurances that the State shall develop
plans for the effective use of cross-jurisdictional
resources to facilitate timely adoptive or permanent
placements for waiting children[.];
(13) contain a description of the activities that the
State has undertaken for children adopted from other
countries, including the provision of adoption and
post-adoption services; and
(14) provide that the State shall collect and report
information on children who are adopted from other
countries and who enter into State custody as a result
of the disruption of a placement for adoption or the
dissolution of an adoption, including the number of
children, the agencies who handled the placement or
adoption, the plans for the child, and the reasons for
the disruption or dissolution.
* * * * * * *
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IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE I--GENERAL
definitions
Section 101. (a) * * *
* * * * * * *
(b) As used in titles I and II--
(1) The term ``child'' means an unmarried person under
twenty-one years of age who is--
(A) * * *
* * * * * * *
(E)(i) a child adopted while under the age of sixteen
years if the child has been in the legal custody of,
and has resided with, the adopting parent or parents
for at least two years: Provided, That no natural
parent of any such adopted child shall thereafter, by
virtue of such parentage, be accorded any right,
privilege, or status under this Act; or
(ii) subject to the same proviso as in clause (i), a
child who: (I) is a natural sibling of a child
described in clause (i) or subparagraph (F)(i); (II)
was adopted by the adoptive parent or parents of the
sibling described in such clause or subparagraph; and
(III) is otherwise described in clause (i), except that
the child was adopted while under the age of 18 years;
[or]
(F)(i) * * *
(ii) subject to the same provisos as in clause (i), a
child who: (I) is a natural sibling of a child
described in clause (i) or subparagraph (E)(i); (II)
has been adopted abroad, or is coming to the United
States for adoption, by the adoptive parent (or
prospective adoptive parent) or parents of the sibling
described in such clause or subparagraph; and (III) is
otherwise described in clause (i), except that the
child is under the age of 18 at the time a petition is
filed in his or her behalf to accord a classification
as an immediate relative under section 201(b)[.]; or
(G) a child, under the age of sixteen at the time a
petition is filed on the child's behalf to accord a
classification as an immediate relative under section
201(b), who has been adopted in a foreign state that is
a party to the Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption done
at The Hague on May 29, 1993, or who is emigrating from
such a foreign state to be adopted in the United
States, by a United States citizen and spouse jointly,
or by an unmarried United States citizen at least
twenty-five years of age--
(i) if--
(I) the Attorney General is satisfied
that proper care will be furnished the
child if admitted to the United States;
(II) the child's natural parents (or
parent, in the case of a child who has
one sole or surviving parent because of
the death or disappearance of,
abandonment or desertion by, the other
parent), or other persons or
institutions that retain legal custody
of the child, have freely given their
written irrevocable consent to the
termination of their legal relationship
with the child, and to the child's
emigration and adoption;
(III) the child is not the
grandchild, niece, nephew, brother,
sister, aunt, uncle, or first cousin of
one or both of the adopting parents,
unless--
(aa) the child has no living
parents because of the death or
disappearance of, abandonment
or desertion by, separation
from, or loss of, both parents;
or
(bb) the sole or surviving
parent is incapable of
providing the proper care for
the child and has in writing
irrevocably released the child
for emigration and adoption;
and
(IV) in the case of a child who has
not been adopted--
(aa) the competent authority
of the foreign state has
approved the child's emigration
to the United States for the
purpose of adoption by the
prospective adoptive parent or
parents; and
(bb) the prospective adoptive
parent or parents has or have
complied with any pre-adoption
requirements of the child's
proposed residence; and
(ii) except that no natural parent or prior
adoptive parent of any such child shall
thereafter, by virtue of such parentage, be
accorded any right, privilege, or status under
this Act.
(2) The term ``parent'', ``father'', or ``mother'' means a
parent, father, or mother only where the relationship exists by
reason of any of the circumstances set forth in (1) above,
except that, for purposes of paragraph (1)(F) (other than the
second proviso therein) and paragraph (1)(G)(i) in the case of
a child born out of wedlock described in paragraph (1)(D) (and
not described in paragraph (1)(C)), the term ``parent'' does
not include the natural father or the child if the father has
disappeared or abandoned or deserted the child or if the father
has in writing irrevocably released the child for emigration
and adoption.
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
procedure for granting immigrant status
Sec. 204. (a) * * *
* * * * * * *
(d)(1) Notwithstanding the provisions of subsections (a) and
(b) no petition may be approved on behalf of a child defined in
[section 101(b)(1)(F)] subparagraph (F) or (G) of section
101(b)(1) unless a valid home-study has been favorably
recommended by an agency of the State of the child's proposed
residence, or by an agency authorized by that State to conduct
such a study, or, in the case of a child adopted abroad, by an
appropriate public or private adoption agency which is licensed
in the United States.
(2) Notwithstanding the provisions of subsections (a) and
(b), no petition may be approved on behalf of a child defined
in section 101(b)(1)(G) unless the Secretary of State has
certified that the central authority of the child's country of
origin has notified the United States central authority under
the convention referred to in such section 101(b)(1)(G) that a
United States citizen habitually resident in the United States
has effected final adoption of the child, or has been granted
custody of the child for the purpose of emigration and
adoption, in accordance with such convention and the
Intercountry Adoption Act of 2000.