Friday, May 15, 2009

The Haitian Adoption Process


Current Haitian adoption law

The current Constitutional law regarding adoption reads as follows (translation):

Article 2. Adoption is only allowed for people of both sexes who are older than 35. However, it can also be requested by a married couple who are not separated, as long as at least one of them is over age 35, if they have been married more than ten years, and do not have any [biological] children from this marriage.
The adopters should have neither children nor descendants on the day of the adoption.

The adopters should be 19 years older than the people they propose to adopt, unless the latter are the children of their spouse. In this case, the minimum age difference required shall be no more than ten years and may even be less if given a dispensation by the Head of State.

Article 3. Without the dispensation of the President for Life of the Republic, adoption is only permitted in the absence of legitimate or biological descendants;

It was written in 1974 by Jean Claude Duvalier. Historically, the Haitian social welfare and legal systems disregarded the specific clauses of the law, and the Director of Haitian Social Services would specify the requirements for prospective adoptive families. These were typically as follows:

Couples with both parties over age thirty, married for five years, and with no more than three biological children. At present, only couples with both parents over 35 who can prove ten years of marriage or co-habitation are being accepted by IBESR.

Singles over age thirty or thirty-five, depending upon the individual Director’s guidelines. A few single men have adopted, but most orphanage directors will only work with single women.

At the present time, adoptions are proceeding smoothly for families who do meet the law of 1974.


A rough time line for conforming dossiers as of 11/15/2009:

IBESR 4 to 6 months

Parquet Court 2 to 3 months

Intermediate processing 2 to 2 ½ months

MOI 3 to 4 months

US Immigrations 2 to 6 weeks



Adoptions for families who do not meet the legal criteria of the law of 1974


Since the election of President Rene Garcia Preval in 2006, the country has been steadily moving towards a more lawful and transparent government. Parquet district court in Port-au-Prince began refusing to legalize adoptions authorized by IBESR to parents who did not conform to the law of 1974. Families who do not conform to the law must be granted a Presidential Dispensation in order to legally adopt a child.

Families which do not meet the law of 1974 and yet are pre-approved by IBESR will have their dossiers submitted for Presidential Dispensation. At this time there is no consistent estimate for the waiting time for a Dispensation.

The first Presidential Dispensations were granted in January of 2009. Thus far there have been no denials of Dispensation to families already provisionally approved by IBESR (Haitian Social Services). At this time there are hundreds of cases awaiting Dispensation. A few are granted each week in a slow but steady stream.


The pending adoption law

At the same time, a new adoption law has been proposed. It was authored with input from IBESR and UNICEF. The law is currently awaiting discussion, modification, and a vote from the Senate. Joint Council agencies and the Haitian Creche Directors Association are working together to lobby for specific changes to the proposed law, primarily consisting of broadening the criteria for adoptive families, especially in the cases of older children, sibling groups, and children with special needs.

As the proposed new law is currently written (as translated for us by Isabelle Gaellemart of France), the section discussing criteria for adoptive families includes to following:

SECTION 1 – Regarding adoptive parents

ARTICLE 2. – Adoption may be requested jointly by a married heterosexual couple not living separately, after five years of marriage if one of the couple is more than thirty years old.

If the request comes from one of the non-separated couple, the consent of the other is necessary.

ARTICLE 3.- Two people of opposite sexes, living together for at least ten years, may request to adopt a child. Their living together must be established by a certificate delivered by the competent authorities of the host country and the consent of both is necessary.

ARTICLE 4.- Candidatures of women, widowers or divorced, who are at least thirty-five years old, with no biological child, are accepted. A man must be a widower or divorced, with no biological children and at least 35 years old.

ARTICLE 5.- Priority is given to couples who are married or living together who do not have biological children at the time of the adoption. When the aforementioned heterosexual couple has a maximum of two biological or adopted children, they may only adopt children with special circumstances (handicapped, with health problems or older than 5 years of age).

If the couple already has biological or adopted children, the latter should give their opinion if they are 8 years of age or more.

ARTICLE 6.- The age of the adopters may not be over 50 for the oldest of the married couple or those living together in a common-law relationship.

This limitation of age does not apply for inter family adoptions.

The pending law offers far greater protection for Haitian families, their biological children, and even adoptive families than is afforded by the current law. It is important to note that independent adoptions (adoptions in which the adoptive family is not represented and monitored by a licensed adoption agency in their country of citizenship) will be discontinued. Specific post-placement reporting requirements are mandated, and all international adoption agencies will be registered with IBESR.

Summary

At present, the adoption process remains rocky and frustrating for non-conforming families and waiting children alike. However, it is very encouraging to see the rapid progress being made towards making the adoption process function within the law, and towards the passage of a much-improved adoption law for the future. All in all, at least in my opinion, the outlook is far brighter than it has been for a long time for the homeless children of Haiti.

1 comment:

  1. Help. I don't meet the requirements should I try for a presidential dispensation?

    ReplyDelete