Next Steps for the United States

by Meghan Hendy
as published in The Bulletin of the Joint Council on International Children's Services (Winter 2004)

It's been a long time coming - over ten years - but the United States still has a few more steps to take before it ratifies the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

Since its inception and becoming a signatory in March 1994, the United States has supported the Hague Convention on Intercountry Adoption. According to the Hague Conference on Private International Law, "by signing a Convention, a State expresses, in principle, its intention to become a Party to the Convention. However, signature does not, in any way, oblige a State to take further action (towards ratification or not)"

This explains how Russia and China have both signed the Hague Convention but currently do not appear to be pursuing ratification. They may pursue ratification in the future but are not obligated. However, the United States has taken several steps in preparation of ratification and continues to pursue its course.

In 2000, President Clinton signed into law the Intercountry Adoption Act, the United States' implementing legislation for the Hague Convention. Once a law has passed it cannot be changed except through subsequent legislative measures. However, changes can occur within the regulations before they are finalized. During the fall of 2003 the proposed regulations were published and open to public comment. JCICS formed a working committee and addressed our concerns to the U.S. Department of State in a 35 page response paper.

Presently, the Department of State is reviewing the comments submitted during the public comment period. Suggestions and modifications may be incorporated into the regulations which will be submitted to the Office of Management and Budget (OMB) for a review period of up to 90 days and then returned to the Department. The existing question is whether the Department will then publish the regulations as final or will issue another proposed version for a second public comment period and effectively repeat the process. The latter would ensure that all voices were accounted for and provide an additional opportunity to review the regulations but it would also add a considerable amount of time onto the ratification timeline.

Simultaneous to the review process, the Department of State is in discussions with potential accrediting entities to determine which entities will ultimately be designated as accreditors. However, the accreditation process and the standards which adoption agencies will be held accountable cannot be confirmed until the regulations are finalized.

After the regulations and the accreditation process are finalized, the Department of State will announce the timeframe for adoption agencies to obtain Hague accreditation, which will most likely last for approximately 15 - 24 months with a specific cut-off date identified. During this time period agencies that plan on working in other Hague countries will go through the accreditation process with one of the designated accrediting entities. After the cut-off date the Department of State will publish the list of all accredited agencies. Prior to that date an agency that has undergone accreditation will not know if they "passed" or not until the list is published. This is to guarantee an equal playing field so no one can prematurely claim to be Hague accredited. After this time agencies can still apply to become accredited but they will not be included on the initial list. Once the list is published, as the United States' Central Authority, the Depart will deposit the instruments of ratification at the Hague Permanent Bureau. Three months later the United States will automatically enter into force in the Hague Convention on Intercountry Adoption and the process will be complete.

To provide an illustration of the estimated timeframe, a diagram outlining the necessary events leading to ratification is provided below. JCICS is estimating that ratification will occur late 2006 to early 2007 if the regulations are published in 2004 as final. If the regulations undergo an additional comment period, ratification will occur six months to one year later (late 2007 into early 2008). This is of course subject to change and is a best guess estimate. While there is still a long road ahead, the end is in sight.