Wednesday, February 24, 2010

Observations of Nepal’s Troubled Adoption System from a Past Perspective

By Barbara McArtney
Attorney at Law
Director, Graham’s Gift Children’s Foundation
Board Member, PEAR

The Government of Nepal suspended international adoptions in 2007 in order to reform its process, then widely criticized as being corrupt and rife with irregularities. Under new terms and conditions written in 2008 that accredited orphanages and licensed foreign agencies, Nepal reopened to US adoptions in 2009. At the same time, they charged both agencies and parents new fees of thousands of dollars, yet made no improvements in child welfare or the transparency of the adoption process.

Agencies each must pay $10,000 per year to be licensed to operate in Nepal with an initial quota of 10 adoptions/year. According to a new MOU issued in February 2010, money collected from this fee will be given to the newly formed Child's Rights Fund managed by a committee including members of the Ministry and Child NGO Federation-Nepal (CNFN) among others*, who will decide how the funds are to be used ( Adoptive parents are required to pay $5,000 to each orphanage regardless of the amount or cost of care as well as $3,000 to the government of Nepal for each completed adoption. Little to no accountability for the use of these fees is required.

Nepal signed the Hague Intercountry Adoption Convention in 2009, but the committee from the Hague issued a highly critical report of their system. The report cited numerous conflicts of interest, the improper influence of fees charged by the government, failure to make family reunification efforts or in-country placements, and a lack of consideration to the best interests of the child. Nepal adoptions have been at a near-standstill for over a year as hundreds of dossiers have been accepted but almost none processed. Despite this backlog, Nepal has recently accepted 17 new agencies as well as solicited the fees for relicensing of the 60 or so agencies already approved. Yet no adoptions are moving forward. Some agencies are accepting 2010 dossiers despite no movement in the 2009 dossiers. Prospective parents are given little information by their agencies, and are justifiably confused and upset. In February 2010, the US Department of State (DOS) warned against initiating an adoption from Nepal at this time.

PEAR has requested that I give my thoughts on the current situation in Nepal in light of my adoption agency’s failed attempt to run a legal and ethical adoption program there in the past. Our agency attempted to run a small placement program in Nepal in 2003-2004. We had arranged to work with the Nepal Bar Association Legal Aid program, which was going to set up a network of cooperating legal-aid lawyers in outlying districts, where they maintain a presence to make legal referrals and process relinquishments of genuinely adoptable orphans. For each child adopted, we were going to support other orphans who were not adoptable through educational programs (especially for young girls) of training or trade school. The Bar Association was initially very enthusiastic, and assured me everything would be done legally and ethically. I made two trips to Nepal and met with Ministry officials, the executive board of the Nepal Bar Association, and its president and secretary numerous times. They were gracious and professional. I was naïve enough to think that partnering with Nepal’s largest legal organization would ensure high standards of ethical conduct and professional efficiency, and that our agreement indicated the intent to perform as written. After all, in America, legal aid is traditionally thought of as a way the less empowered are protected and their rights advanced.

The Nepal Bar went to bat for free speech, open government and due process. We signed an agreement with lots of stamps, strings, and seals, and had all sorts of alleged support after meetings with the Ministry. It was during a time of protests, bandhs (strikes) and upheaval, and there were supposedly many orphans in outlying areas unable to get placed in orphanages for which there were long waiting lists. I believed that Nepal's poverty, civil war, and various social systems gave rise to a desperate need for international adoption. I heard stories of children’s parents being killed, leaving them with no family and nowhere to go. Abandonments had increased. The possibilities for the extended family and community being able to assume care for children lessened due to extensive displacement and lost resources.

So I went to meet with the US Embassy Consular Officer. He was anything but encouraging, and told me I was foolish to trust the Bar Association, and that my plans to work with them were just going to cause a lot of trouble. I was very intimidated and upset by his harsh words, especially as I believed we had ideal partners--and like so many other well-intentioned people in the adoption business, I could do it right with my good intentions.

After my two trips to Nepal and all the promises I had been given, though, the project was still elusive in materializing. Those very same promises of ethical operation and transparency were soon replaced with notifications that I would be “informed” when things were arranged. I began to suspect that I was being “handled” by my “partners.” The separate bank accounts for orphan education and facilitation were never set up, despite my repeated instructions and requests. I was given the private bank account number of the Bar Association’s secretary with the explanation, “In case I need it” instead. I reiterated that I wanted this to be an uncorrupt and legitimate process. My questions and protests eventually resulted in emails and phone calls that were ignored and left unreturned. I realized that I either had to comply with the way things were in Nepal, or shut down. I terminated the program in 2004.

Adoptions directly with orphanage directors were no less corrupt. One director I dealt with ended up being, quite simply, a criminal. He demanded an all-expenses-paid trip to the United States for his entire family for a month in order to complete an adoption. He announced this as he also attempted to extort money from a family there to adopt a baby they had already held, bonded with, and agreed to adopt. Upon refusal to give in to any demands, he informed us that the biological parents of the baby had come back and reclaimed the child and the adoption was no longer possible.

One Mercedes-driving orphanage director had a very large operation, with several orphanages and a baby home full of many newborns. That home was strictly for newborns being adopted internationally. It was like a production facility, with a dozen nannies being ordered about in a large city compound. The orphanage in the city for older children was more typical of Kathmandu orphanages. The director required his own legal fee (it was not permitted to use an independent attorney), a standard adoption fee, sponsorship of a child, baby care until placement, and then, a donation of several thousand dollars more to buy “a few more computers needed for an educational project.” According to other adoptive parents with whom I stayed in touch over the years, he must have bought enough computers to fill a stadium. Proof of use of these fees was never provided. In-kind donations were not permitted.

At our meeting, this director predicted that the Bar Association project would fail because people in the countryside had to “trust” the people to whom their children were being relinquished (and have the right connections in Kathmandu, too). Legal Aid lawyers, despite any assistance they provided in the community, apparently were not those people. At the time I believed (or perhaps hoped) that he meant that the Legal Aid lawyers wouldn’t illegally pay for referrals. He did not explain how he got his children from the countryside where he was “trusted” to move children into Kathmandu for adoption.

Referred children (from other than Bal Mandir) were supposedly all relinquished or “found” in the Kathmandu Valley. Their adoptive parents had to sign papers to adopt them at the District Administration Level where they are “from”--and at that time that was always in the safe Kathmandu Valley or a small number from the resort area of Pokhara. But it was understood that many of the children were from outside of Kathmandu in countryside areas where adoptive parents cannot or will not travel in order to accept the referral at the District Administration level. Rural children were relinquished to orphanage directors or their employees, and
transported into Kathmandu, where they were turned over to the local police in Kathmandu as having been “abandoned” there near a police station. Or, more rarely, a Kathmandu-area family would pose as a biological parent relinquishing their own child who’d newly born to them at home. (It was not unusual for a birth to take place at home and for there to be no hospital documents.) The police would then refer that child “for care” to the orphanage director or his staff (who were actually those who’d brought the child in, in the first place), and then the notices would be published so the child was adoptable while receiving pre-adoptive care in the specialized adoption baby homes or an orphanage. It was observed by some that ethnic children from specific areas of Nepal would be found by the same police station in a clearly observable pattern, making it obvious they were not really from Kathmandu. Everyone knew this was the way it worked. In most cases, the Ministry had no objection and the Embassies had no direct evidence of the trafficking, so these adoptions would frequently pass muster.

The attorney for the government-affiliated orphanage, Bal Mandir, was also the facilitator for several private IA agencies at that time, a clear conflict of interest known to all professional participants in the Nepali adoption process, but tolerated and permitted to continue. I was referred to that facility by the Ministry only to have the attorney refuse to work with us when he learned that the Bar Association was to handle our legal work. I do not know if this attorney is still working in that capacity at Bal Mandir.

At the time, some US-based adoption agencies publicly lamented the flood of agencies descending upon Nepal to set up “unethical” adoption programs and “ruining everything.” But the newcomers were only playing the same game as the existing agencies. Perhaps they did so less discreetly and in numbers that became too large to fly below the radar. Perhaps they pushed the envelope too far or offered higher fees to break into the previously exclusive market. This spoiled things for the more established and seemingly genteel baby launderers. I recall one agency describing their operations as serving only “boutique agencies.”

I complained to various officials in the Ministry without response as well as to the US Embassy consular officer for months. Apart from the “I told you so” and some unpleasant exchanges, he also held a "demarche" with the Ministry to address my reports (and those of others) about corruption and trafficking. Despite these less-than-amicable exchanges and mutual frustration, I believe the consular officer did what he could. Nothing came of their demarche. One orphanage eventually was banned by the US for adoptions after others complained of the same extortion. Thankfully, I had only accepted a few families into our Nepal “pilot program,” and returned all fees to the one family who was unable to complete their adoption. There was no way to conduct legal and ethical adoptions in Nepal as far as I could see. Our agency stopped doing foreign placement programs then, for good.

Like others, I am puzzled why the Ministry has not managed to process a reasonable number of adoption dossiers while accepting hundreds more since Nepal reopened in 2009. Is it fear that the paperwork is so flagrantly false as to trigger in-depth investigations by DOS and the issuance of NOIDs? Due to worries about corruption, other countries have already banned adoptions from Nepal. Are more on the brink? There certainly is a lot of political instability in Nepal that could easily explain the lack of coherent operations, but the Ministry is still somehow able to license more agencies and demand more fees from already licensed agencies. Why allow more agencies to “operate” in Nepal when there is no viable operation or any moment of referrals or travel approvals right now? Whatever the reason, it is just plain wrong for Nepal to collect yet more fees (at $10,000 per) to not only re-license, but to issue new licenses. I believe it is equally wrong for agencies to be soliciting clients for Nepal until the system shows some signs of both functioning and ensuring ethical adoptions.

Is the adoption system in Nepal likely to change? With zero transparency at the Ministry level, all predictions are mere speculation. The only certainty is that unless major changes are made, it is only a matter of time before Nepal joins the ranks of Cambodia, Guatemala, Vietnam, Romania, Georgia, and Azerbaijan, and becomes the next country shut to IA due to corruption and unethical procedures by both locals in-country and by the adoption agencies that enabled and denied the truth of this trafficking to their clients.

*correction made to the original blogpost due to an editing error 2/25/2010

Ethics, Transparency, Support
~ What All Adoptions Deserve.

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