For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30342 ------------------------------------------------------------------------------ Order Code RL30342 CRS Report for Congress Received through the CRS Web Hague Convention Implementation Legislation: Comparison of H.R. 2909, S. 682, and Administration Draft October 18, 1999 Douglas Reid Weimer Legislative Attorney American Law Division Congressional Research Service ~ The Library of Congress Hague Convention Implementation Legislation: Comparison of H.R. 2909, S. 682, and Administration Draft Summary The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ("Convention") establishes uniform standards and procedures for the international adoption of children. The United States became a signatory to the Convention on March 31, 1994. In order to implement the provisions of the Convention, each signatory nation must enact domestic legislation to fulfill the treaty requirements. At the present time, several different versions of the implementing legislation are being considered: H.R. 2909, the "Intercountry Adoption Act of 1999;" S. 682, the "Intercountry Adoption Convention Implementation Act of 1999;" and the companion bill to S. 682, H.R. 2342. In addition, a draft bill entitled "Intercountry Adoption Act" which is known as the "Administration bill" was prepared by the State Department and transmitted to the President in June 1998. It has not been introduced. This report compares and analyzes certain provisions of H.R. 2909, S. 682. and the Administration bill. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Comparison and Analysis of Three Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Hague Convention Implementation Legislation: Comparison of H.R. 2909, S. 682, and Administration Draft Introduction Interest is currently focusing on legislation which would implement certain requirements of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ("Convention"). The United States became a signatory to the Convention on March 31, 1994. The Convention was transmitted to the Senate for its advice and consent on June 11, 1998.1 The purpose of the Convention is to establish uniform standards and procedures for the international adoption of children. Through the establishment of such uniform procedures, the Convention will attempt to protect the rights and interests of the adoptive children, the birth parents, and the adoptive parents involved in intercountry adoptions. The Convention mandates that each signatory country establish a national Central Authority. The Central Authority is to oversee the Convention's implementation in the signatory country.2 The Convention has three primary features. First, it reinforces the protection of children's rights concerning international adoption. Second, it establishes a mechanism for the cooperation of signatory countries in the areas of international adoption. Third, it ensures the recognition of adoptions undertaken and certified through the Convention provisions. To be able to implement the provisions of the Convention, each signatory country must enact domestic legislation which will fulfill the treaty requirements. Three different versions of the implementing legislation are being considered. H.R. 2909, the Intercountry Adoption Act of 1999 ("House bill") was introduced by Representative Gilman on September 22, 1999.3 S. 682, the Intercountry Adoption 1 On June 11, 1998, the Convention was read for the first time in the Senate, and together with the accompanying papers, was transferred to the Senate Committee on Foreign Relations. See S. Treaty Doc. 105-51, 105th Cong., 2d Sess. (1998). The Senate did not take action on the Convention in the 105th Congress. It is anticipated that the Convention ratification process will occur simultaneously with the consideration of the implementing legislation. 2 See, Treaty Doc. 105-51 at v-xv for a summary of the provisions of the Convention. 3 The bill has been referred to the House International Relations Committee, the House Judiciary Committee, the House Education and Workforce Committee, and the House Subcommittee on Immigration and Claims. Hearings on the bill are scheduled for October 20, 1999, before the House International Relations Committee. The bill is expected to be sequentially referred to the House Ways and Means Committee (pursuant to executive (continued...) CRS-2 Convention Implementation Act of 1999 ("Senate bill") was introduced on March 23, 1999 by Senator Helms.4 A companion bill to S. 682 -- H.R. 2342 -- was introduced by Representative Burr on June 24, 1999.5 As the provisions of H.R. 2342 are identical to those of S. 682, H.R. 2342 will not be examined independently. A draft bill, entitled the Intercountry Adoption Act (Administration bill) was drafted by the U.S. State Department and was transmitted to the President in June 1998. The bill has not been introduced and its future is uncertain. Comparison and Analysis of Three Bills This report provides a comparison of certain selected provisions contained in the different versions of the legislation.6 The following chart compares and contrasts the various subject provisions in the three pieces of legislation. SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 1. The Accrediting Sec. 203(a)(1) Sec. 202(a)(1) Sec. 201 Entit(ies) The Secretary of The Secretary of The Secretary of Health and Human State shall Health and Human Services, with the designate Services, in concurrence of the accrediting entities. coordination with the Secretary of State, Secretary of State, is authorized to shall carry out the enter into accreditation process. agreements with qualified entities. 3 (...continued) communication from the Speaker's table, Communication 02856, July 1, 1999). 4 The bill was referred to the Foreign Relations Committee. To date, the bill has not emerged from Committee. The Committee held hearings on the bill on October 5, 1999. 5 The bill was referred to the House International Relations Committee, the House Judiciary Committee, and the House Immigration and Claims Subcommittee. To date, it has not emerged from Committee consideration. 6 The subject topics which are considered in this report were determined through discussions between CRS staff and Congressional staff. A determination was made to analyze the eleven subject areas which are discussed below. The bills contain various other topics which could be the subject of comparison and analysis. CRS-3 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 2. Roles of Sec. 101(a)(2) Sec. 101(a)(2) Sec. 101 Government Same Officials; Secretary of State The Secretary of State shall serve as head Sec. 101(b) shall establish or Responsibilities in of the Central State Department designate an office the accreditation Authority of the personnel within the Department and/or approval United States. performing Central of State as the United process Authority functions States Central are required to have Authority, which shall 3-5 years of perform such Central experience in Authority functions as international the Secretary of State adoptions. may delegate to it. ---------------- ---------------- ---------------- Sec. 102 Sec. 102 -- Sec. 102 Responsibilities of Nearly identical the Secretary of language. Secretary of State State: liaison, responsible for U.S. information performance of exchange, other Central Authority responsibilities, functions. establish a case registry (with Sec. 103 Attorney General) Secretary of State Sec. 103 Sec. 104 shall have responsibility for Responsibilities of Same language. liaison, information Attorney General: exchange, and other concerning filing of responsibilities. applications by prospective Sec. 105 adoptive parents. Secretary of State shall monitor individual adoptions; establish adoption registry in coordination with Secretary of HHS and the Commissioner of the Immigration and Naturalization Service. CRS-4 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 2. (Cont.) Roles of Sec. 104(a) Sec. 105(a) No annual report Government requirement. Officials; Annual report to Annual report to Congress shall be Congress shall be Responsibilities in prepared by the prepared by the the accreditation Secretary of State, Secretary of State; and/or approval in consultation with more information process the Secretary of required in the Health and Human report than required Services, the in the report Attorney General required by the and other House bill. appropriate agencies. ---------------- ---------------- ------------------ Sec. 201 Sec. 202(a) Sec. 201 The Secretary of The Secretary of The Secretary of HHS, Health and Human State shall in coordination with Services in designate the Secretary of State, coordination with accrediting entities. shall carry out the the Secretary of functions prescribed State, shall carry The Senate bill by the Convention out accreditation of does not contain with respect to the agencies and provisions for the accreditation of approval of persons approval process. agencies and approval to provide adoption of other persons to services in the U.S. provide adoption in Convention (No responsibility services, and such adoptions. for the Secretary of other functions under Health and Human the Convention as Sec. 203(a)(1) Services). may be provided for in this Act or in The Secretary of implementing HHS, with the regulations. concurrence of the Secretary of State, Sec. 204 shall enter into accreditation/approval agreements with various entities to Similar to language in perform adoption- Sec. 203(a)(1) of related services. House bill. CRS-5 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 2. (Cont.) Roles of Sec. 203(d) Government Officials; Fees -- see Fees -- see Fees -- see discussion discussion below discussion below below (Item 7). Responsibilities in (Item 7). (Item 7). the accreditation ---------------- ---------------- ------------------ and/or approval Sec, 204(a)(1) Sec.203(a)(1) Sec. 203(a)(1) process The Secretary of The Secretary of The Secretary of HHS, HHS, with State shall establish with the concurrence concurrence of by regulation of the Secretary of Secretary of State, standards and State, shall establish shall prescribe procedures to be by regulation standards and used by accrediting standards and procedures for entities for the procedures for agency accreditation of accreditation of accreditation or persons for the agencies, and approval approval of persons purpose of of other persons, to to provide adoption arranging perform functions services. Convention under the Convention adoptions. regarding Hague adoptions. ---------------- ---------------- ------------------ Sec. 205 Sec. 204 Sec. 205 The Secretary of The Secretary of Similar to House bill. HHS to monitor, State to monitor, suspend, or cancel suspend, or cancel the designation of the designation of an accrediting an accrediting entity, if the entity entity, if the entity is substantially out is substantially out of compliance. of compliance. The Secretary of The Secretary of HHS may suspend State may or cancel the temporarily or accreditation or permanently debar approval of an a person from agency or person if accreditation. the agency or (There is no person is remedial action substantially out of against an compliance, and accredited person the accrediting short of entity has failed or debarment.) CRS-6 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 2. (Cont.) Roles of refused to take Government appropriate Officials; corrective action. If deficiencies are Responsibilities in corrected, the the accreditation Secretary may have and/or approval the suspension process restored. The Secretary of HHS may temporarily or permanently debar an agency or person from accreditation or approval. ---------------- ---------------- ------------------ No separate report No separate report Sec. 206 on disruptions; part on disruptions; part of annual report. of annual report. Secretary of HHS and See Sec. 104. See Sec. 105 Secretary of State to monitor and study adoption disruptions. ---------------- ---------------- ------------------ Sec. 301 Sec. 301 Sec. 301 Secretary of State Similar. Similar. to issue certificates to adoptive citizen parent that adoption was granted; or that legal custody of child has been granted to the parent for purposes of emigration and adoption. ---------------- ---------------- ------------------ Sec. 302(a)(3) Similar. Similar. Requires Attorney Sec. 302(b) General's oversight contains that proper care requirement for will be furnished to Secretary of State a child if admitted to certify to the to the United Attorney General of CRS-7 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 2. (Cont.) Roles of Sec. 303(c) Sec. 303(d). Sec. 303(c) Government Officials; The Secretary of Similar. Similar. State shall issue a Responsibilities in certificate dealing the accreditation with the adoption and/or approval of a child process emigrating. ---------------- ---------------- ------------------ Sec. 304(b) Sec. 305(b) Sec. 305(b) Establishes record Similar. Similar. keeping and notification responsibilities of the Secretary of State concerning vacating of Convention adoptions. Sec. 304(c) Sec. 305(c) Sec. 305(c) Addresses Attorney Similar. Similar. General's authority to revoke the naturalization of child and related issues. ---------------- ---------------- ------------------ Sec. 401(a)(1) Sec. 401(a)(1) Sec. 401(a)(1) Secretary of State, Similar. The Secretary of State in consultation with and the Commissioner the Attorney of the Immigration General, shall issue and Naturalization regulations to Service shall establish establish procedures for the procedures and retention and requirements in identification of accord with the Hague adoption Convention for the records. preservation of adoption records. CRS-8 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 2. (Cont.) Roles of Sec. 401(d)(2) Sec. 401(e) No similar provision. Government Officials; Secretary of HHS, Similar. in consultation with Responsibilities in the Secretary of the accreditation State and the and/or approval Attorney General process shall issue regulations concerning identifying and confidential information regarding the child. ---------------- ---------------- ------------------ Sec. 404 Sec. 404 Sec. 404 The Secretary of The Secretary of The Secretary of HHS HHS and the State may impose a and the Secretary of Secretary of State civil money penalty State are to coordinate are to coordinate pursuant to such with the Attorney with the Attorney procedures as may General regarding the General regarding be agreed upon by imposition of money the imposition of the Secretary and penalties for statutory money penalties for the Attorney violations. statutory violations. General. ---------------- ---------------- ------------------ Sec. 502 See, Sec. 304 See, Sec. 304. The Secretary of Sec. 304 similar. Sec. 304 similar; not State may establish as comprehensive. by regulation alternative procedures for the adoption of individuals related by blood or marriage, in cases subject to the Convention. The Secretary of State is also given waiver authority for provisions of the legislation and CRS-9 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 3. Annual Report legislation and Requirement regulations in the interest of justice or to prevent grave physical harm to the child. ________________ ________________ __________________ Sec. 104 Sec. 105 No comparable provision. Secretary of State, Similar provision; in consultation with however, sole Secretary of HHS responsibility of and Attorney Secretary of State; General, is required and additional to submit an annual reporting report to Congress requirements. concerning various issues of intercountry adoptions. CRS-10 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 4. Conforming Sec. 302 Sec. 302 Sec. 302 amendments to the Immigration and Subsection (a) Similar language. Similar language. Naturalization Act 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 be classified 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. 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 CRS-11 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 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. 5. Definition of Sec. 303(a) Sec. 303(b) Sec. 303(b) adoptive parent(s) for children "...prospective The child will be emigrating from the adoptive parent or adopted by a "...prospective United States parents...." married man and adoptive parent or woman. Also: parents...." "...prospective adoptive parents...." CRS-12 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 6. Waiting period Sec. 303(a)(1)(B) Sec. 303(b) No provision to adopt children emigrating from the A determination (C) Twelve months United States must be made that have elapsed since the child cannot the person made expeditiously be efforts to place the placed for adoption child in the United in the United States. States. 7. Fees Sec. 203(d) Sec. 202(d) Sec. 204(d) Accrediting entity Accrediting entities Accrediting entities may assess fees authorized to assess are authorized to against agencies fees in amounts assess fees against and persons approved by Sec. of agencies and persons seeking State against seeking/maintaining accreditation/ persons seeking or accreditation/approval approval; Secretary maintaining in amounts approved of HHS may accreditation. by the Secretary. approve fees if Certain standards certain conditions are set. An Availability -- Fees are met; accrediting entity remitted to the accrediting entity is shall not provide Secretary of HHS to collect fees, discounted fees for shall be credited to the remit certain certain persons for appropriate current amounts collected accreditation for account of the to Secretary of purposes of Secretary and be HHS. Secretary is intercountry available only for to deposit in adoption. activities under the Treasury of the Act. Such amounts U.S. all amounts shall remain available remitted. until expended. CRS-13 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 7. (Cont.) Fees Sec. 403(b) Sec. 403(b) Sec. 403(b) Secretary of State Similar provisions. Similar provisions. may charge a fee to cover costs of new However, Sec. or enhanced 403(c) provides the services that will be restriction that no undertaken to meet funds may be made the Act's available to an requirements. Such accrediting entity to fees will be carry out the retained and purposes of this deposited as an Act. offsetting collection to any State Dept. appropriation to recover the costs of providing services. CRS-14 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 8. Privacy Issues Sec. 402(b) Sec. 401(b) Sec. 401(b) Certain information (1) Identifying (1) Except for from Convention information in administrative adoption records Convention purposes, identifying may not be adoption records information shall not disclosed, except as shall not be be disclosed, unless authorized by this disclosed except for the person to whom Act or State law of administrative the information the State in which purposes. pertains consents in the adoptive writing to such parents live at time (2) Privacy Act disclosure; or unless of adoption; application; the person is however, such (A) an individual deceased. information may be who has access to disclosed among records under the (2) Privacy Act the Attorney Privacy Act, shall application; General, central have that right only (A) Same as Senate authorities, to the extent such bill. accredited right is not (B) Same as Senate agencies, and restricted by the bill. approved persons, Act; to the extent (B) Disclosure ofSec. 401(b)(3) necessary to adoption records Other limitation to administer the shall be restricted disclosure: Convention or the by the Privacy Act (A) no disclosure to Act. and subject to child under 18; restrictions under (B) disclosure to other the Act; persons subject to (C) A child subject discretion; to a Convention information may be adoption record disclosed at the shall not have discretion of the Sec. access to such of State or the information unless Commissioner of the that child is at least Immigration and 18. Naturalization Service. ________________ ________________ __________________ Sec. 404(c) Sec. 401(c) Sec. 401(c) Freedom of Information in Freedom of Information Act records of State Information and Privacy Act, Dept. and exemption -- similar shall not apply to Immigration and provision. disclosure of Naturalization CRS-15 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 8.(Cont.) Privacy information in concerning issues Convention Convention adoption records. adoptions shall not be subject to disclosure under the Freedom of Information Act ________________ ________________ __________________ No similar Sec. 401(d) Sec. 401(d) provision. Information from Similar provision. Convention adoption records may be disclosed by State Department, any U. S. official exercising Central Authority functions, and any accredited person if necessary to administer the Convention or Act. ________________ ________________ __________________ Sec 404(d) Sec. 401(e) Sec. 2(k) Identifying Identifying Identifying information is information means information means defined broadly; adoption record any information in a does not include information other Hague adoption health, social or than health, social, record that could genetic background or genetic identify a prospective of an individual if background of the adoptive parent, no reasonable basis child which does adoptive parent, birth to believe that such not identify the parent or grandparent, information would child. Regulations or sibling related by be used to identify to be prescribed by blood of a child who the child, birth Secretary of HHS, is or has been the parent, or other in consultation with subject of a Hague birth relative. Sec. Secretary of State adoption. of HHS, in and Attorney consultation with General. Sec. of State and Attorney General to issue regulations. CRS-16 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 9. Provisions Sec. 501. Sec. 501. Sec. 502. dealing with State RELATION TO RELATIONSHIP TO law (a) PREEMPTION OTHER LAWS. OTHER LAWS. OF INCONSISTENT (a) LIMITED (a) LIMITED STATE LAW. -- PREEMPTION. -- PREEMPTION. -- The Convention No provision of No provision of and this Act shall Federal, State, or Federal, State, or local not be construed to local law shall be law shall be preempt any considered considered preempted provision of the preempted by the by this Convention, law of any State or Convention, this this Act, or political Act, or implementing subdivision thereof, implementing regulations unless or prevent a State regulations unless clearly inconsistent or political specified in the therewith. subdivision thereof Act. from enacting any .... .... provision of law with respect to the (c) STATE (c) STATE subject matter of LICENSING LICENSING LAWS the Convention or LAWS. -- Nothing -- this Act, except to in the Convention the extent that such or Act precludes Similar provision. provision of State any State from law is inconsistent requiring that a with the person or entity be Convention or this licensed by the Act, and then only State as a condition to the extent of the of providing inconsistency. adoption-related services. CRS-17 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 10. Enforcement Sec. 404. Sec. 404. Sec. 404. This section Similar language, Similar to Senate bill. provides for civil except civil money money penalties of penalties would be not more than not more than $25,000 for a first $5,000 for a first violation and not violation and not more than $50,000 more than $10,000 for each subsequent for each succeeding violation against violation. Criminal any person who (1) money penalties provides adoption would be not more services in the than $10,000. United States in connection with Convention adoptions without proper accreditation or approval; (2) violates the privacy provisions contained in section 401 or any regulation issued under that section; or (3) 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. The section also provides for criminal penalties or not more than $50,000, imprisonment for CRS-18 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 10. (Cont.) up to one year, or Enforcement both, for knowing and willful violations of paragraphs (2) or (3) of subsection (a). 11. Recognition/ Sec. 301. Sec. 301. Sec. 301. voiding of adoptions Provides that a Similar. Similar. certificate from the Secretary of State shall be treated by Federal and State agencies, courts, and other public and private persons and entities as conclusive and shall constitute the certification required under the Immigration and Nationality Act for children immigrating to the U.S. Also provides that a final adoption in another Convention country, certified by the Secretary of State, shall be recognized as a final valid adoption for purposes of all Federal, State, and local laws of the U.S. CRS-19 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 11. (Cont.) Sec. 304. Sec. 305. Sec. 305. Recognition/ voiding of Prohibits a State Similar, except that Similar to Senate bill. adoptions court from vacating State courts would a final adoption be permitted to decree entered vacate a final pursuant to the adoption decree Convention unless only if less than the decree was two years had granted by a State passed since the court; the court adoptive parents finds that the obtained custody of required consent of the child, and all the birth parent or other specified biological relative conditions were was not obtained or met. was obtained inappropriately, or the adoptive parent's consent was obtained by fraud; voiding the adoption is in the child's best interests; and the adoptive parents have an opportunity to be heard. Provides that a decision by another Convention country to vacate an adoption decree originally issued in the country pursuant to the Convention shall be recognized as valid in the United States upon receipt by the Secretary of State of notification that the conditions described above were satisfied. CRS-20 SUBJECT HOUSE BILL SENATE BILL ADMINISTRATION BILL 11. (Cont.) The vacating of Recognition/ an adoption voiding of decree in a case adoptions subject to the Convention shall not be construed to void or prohibit the naturalization of the child as a U.S. citizen. This provision shall not be construed to limit the Attorney General's authority under the Immigration and Nationality Act to revoke the child's naturalization. ______________ ______________ _____________________ Sec. 501. Sec. 306. Sec. 501. Provides for Identical. Identical. recognition in the U.S. of adoptions concluded between two other Convention countries that meet the requirements of the Convention and that became final before the date of entry into force of the Convention for the U.S. CRS-21 Conclusion This chart has analyzed the differences and similarities between the various legislative proposals to implement the provisions of the Hague Convention. The most significant differences between the House bill, the Senate bill, and the Administration other bills appear to be in the respective roles of the Secretary of State and the Secretary of Health and Human Services, the definitions of adoptive parents for children emigrating from the United States, the fee structure, and privacy issues. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30342