He has an area of the site where he offers his opinion on various situations. I'm posting what he put on the opinion area on September 6, 2007. Here's a link to the original posting
Although it is a long post, Kevin describes some of the past history that is creating the angst & anxiety related to current adoption process in Guatemala.
What the **** is going on?
Guatadopt readers, you've probably figured it out already but in case you haven't, there is a war being waged. I've posted this to my writer's corner, as it is strictly opinion and analysis. While this will discuss what has transpired with Casa Quivira and now La Primavera, I will do my best to use those only as case examples without getting into the particulars. In part, this is because I don't have the particulars. In part, it is because this is intended to explore the larger issues of the battle underway in regard to intercountry adoption (ICA) from Guatemala
First off, the “why”. I’ll start with the valid reasons for scrutiny on Guatemalan adoptions. There are and have been real problems with the adoption system. If only ethical people operated, Guatemala has a wonderful system. But because of a number of factors, unethical practitioners have run wild. As country after country has closed for ICA, it has placed a greater demand on the Guatemalan system. As this has happened, opportunists have run amok. We’ve seen the few examples of RAI, Mary Bonn, and Waiting Angels. But these have all been on the American side of the equation. And in reality, neither the US Embassy nor Guatemalan officials have done anything to stop the problems. Even when the US Embassy has banned people, they have continued to operate with impunity. Thanasis and Blanca Martinez are two great examples. The US Embassy was told who Thanasis was working with. And both the Guatemalan officials and the US Embassy knew that Blanca continued to work under two aliases (Rosalina Garcia and Luz Maria Guerra). Yet both are free today, not facing prosecution or any repercussions of any sort. In short, in any system where you combine money and lax enforcement of laws, things will run wild. This environment in my opinion was tolerated either because no one had any cajones to stop it, or because it helped bring things to where they are today.
Focus on the Guatemalan side. UNICEF has for a long time had large sums of money on the table for Bienestar if adoptions are halted. But time is running out for Pres. Berger to get his hands on that money as he leaves office in January. If we look at what the last president, Oscar Portillo, did as he left office, stealing oodles of cash, we can see that Central America has not recovered from what years of wars to “fight communism” did. Why should Berger be any different? Doesn’t he have the right to leave office with millions of dollars in his coffers like every other leader?
My point in all of this is that while there may be some justified reasons to clamp down on Guatemalan adoptions, there are definitely some other political, and possibly capitalistic, motives in play.
With all this said as background, what is it that is happening right now? Basically, the executive branch of the Guatemalan government is attempting to dominate control over the adoption process. This is apparently being done at the expense of the rule of the law, the Guatemalan Constitution, and the separation of powers between the branches of government.
Guatemala’s government very much mirrors that of the United States. In fact, the only difference I know of is that they have a unicameral, rather than bicameral, congress. But there is an executive branch with a president. That branch sets policy, signs off on laws, and sets regulation in accordance with the law. The legislative branch writes laws and approves them and has the ability to override a presidential veto (as Guatemala did recently on a family planning bill). And then there is a judicial branch to determine what those laws actually say.
In our US government and Guatemala’s, the judicial branch is really the end all. Just as the US Supreme Court got the final say in the Bush-Gore election debacle, the judicial branch of Guatemala’s government should be the most powerful. What is happening right now is that the Executive branch, headed by the President, which includes the PGN, is attempting to break the balance of powers in order to reinterpret the law to its desires.
Before I go into this, let me point out that this happens in the US as well. All of the recent court cases regarding wiretapping, the Patriot Act, Guantanamo, and more point to this being a pattern. In some cases, the courts have sided with the executive branch. In others they have not. My point is that ultimately the usurping of authority ends up in the courts who make a decision, but it can take time to right wrongs when the executive branch has overreached its authority.
In Guatemala right now, the executive branch is attempting to apply the PINA law to adoptions. Most every legal expert I have spoken to agrees that this is not an appropriate application of PINA. I have my ideas on how the executive branch might try to defend this, but what is clear is that their case is without doubt against the spirit and intent of PINA. Thus far, the courts have ruled that PINA does not apply to adoptions. Nonetheless, actions taken by the executive branch in regard to adoption are based on PINA.
The issue of notaries taking the judicial adoption route is an interesting one. Under Guatemalan law, as has been posted on this site, if PGN is overstepping its bounds notaries have the right to go before a judge and override PGN. This is no different than the prisoners at Guantanamo fighting the US executive branch for their rights to legal representation and to know the charges brought against them. I am not trying to be political, just trying to use a US case example to make a point. As I stated earlier, the judicial branch is usually the end all in legal debates. That is its role. In Guatemala, the courts can decide that PGN was overstepping its edicts, override PGN’s determinations, and approve the adoption. This is what has been happening and it is completely legal. With that said, judges are appointed by the executive branch. And just as we have seen in the political nature of US Supreme Court nominees, even judges can be political.
What is fascinating about this latest attack on adoptions if that for years Guatemala’s system has been criticized because judges are not involved in approving adoptions. Now that some judges have been brought into the equation, rather than just the executive branch/PGN, that is no longer a positive thing.
So where is the US government in all of this? Well folks, in my opinion they are sitting by and watching with a certain amount of satisfaction. My view is that the DOS wants adoptions ended because they are a pain in the neck. The US Embassy has had to become more involved in adoptions from Guatemala than in other countries due to the pathetic incompetence of Guatemala’s infrastructure to manage itself (blame which lies largely on its executive branch though that can not be blamed on Pres. Berger solely). The US government issued its warnings and now they are doing a bit of “I told you so”. They have supported any move by the Guatemalans to restrict adoptions. They have publicly thrown their support behind law proposals like Ortega that would end adoptions and the Protocol of Good Practices. So now they are letting people feel the pain.
For the record, officially the US has no say in what Guatemala does with its adoption system. Guatemala is a sovereign nation. And to their credit, the US has gone to bat for families with adoptions completed. But, it is ridiculous to believe that the diplomatic channels available to the DOS could not be more involved because the fact is that the US has a tremendous amount of influence over the actions of the Guatemalan executive branch. To imply otherwise is what my daughter would call “poopie”.
So this is where we find ourselves - in the midst of a multifaceted political struggle. What is truly sad is that innocent children are caught in the middle of it and these bureaucrats don’t seem to give a damn about it. So I will be the voice of reason.
Stop the bullshit attacks on legitimate hogars that provide excellent care. Stop the ridiculous, impossible to satisfy requests of PGN. If there is any evidence of children being placed for adoption that were kidnapped or not intentionally relinquished by their biological mothers than give those kids back to their biofamilies and throw the people who perpetrated the crimes in jail. Why is Blanca Martinez not behind bars? If Guatemala wants to adapt its system then that is its right. But to do so it must pass a new law and implement it in an organized manner that does not leave children stuck in the middle.
The government of the United States needs to defend its citizens who entered into a legal system in good faith. If they believe the system is so bad then they have the right to shut it down as they did in Cambodia. Instead they are choosing to make innocent American citizens and Guatemalan citizens victims in a game of emotional terrorism.
I am not here defending the current system. It needs reform. But I am here saying it is the law of Guatemala. So far, I have not seen that any of these media sensationalized attacks involve any illegal activity. Instead, they are centering on interpretation and stretches of the law that do not really involve the thing of fundamental importance – whether the children were intentionally relinquished.
I am an advocate for children and adoptive parents and what I see happening is a horrible injustice to both. This is wrong and needs to stop. So I end this tirade, this radical rant coming from someone who has tried to be calm and balanced and now finds himself pretty pissed off with a final thought. Whether it is a good, bad, or indifferent thing there are thousands of adoptions in process. There are real, living children who have no families and there are real, living parents who want nothing more than to provide them with a loving family environment. The line in the sand has been drawn by the US DOS. If Guatemala does not pass and implement Hague compliant legislation before the US ratifies The Hague early in 2008 then adoptions to the US, which make up over 90% of all Guatemalan adoptions, will end. Tens of thousands of families have been created through Guatemalan adoption. So don’t penalize children and good, honest adults wishing to give them families. Look for true breaches of ethical behavior and throw the perpetrators in jail. But let the rest continue even if they don’t exactly mirror the world community’s vision of what ICA should be just as they have for years. Stop this witch-hunt and if that means Pres. Berger leaves office with only his huge cattle farming operation to support him, so be it. Because this has all become ridiculous! Children should not be pawns in politics!
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