Legislation

EACH will advocate for legislation that provides equal treatment of adopted children of American citizens with biological children of American citizens, whether the child is born abroad or in America. Initially, the major area of focus for EACH will be at the federal level. Therefore, EACH will focus on issues involving adoptions of foreign born children, since domestic adoptions are governed by state laws.

There are two major pieces of legislation that have been introduced, but have not yet passed the full Congress and been signed into law: The Intercountry Adoption Reform Act (ICARE) and the Natural Born Citizen Act (NBC Act). EACH supports both of these proposed bills and will work to help enact them into law.

In brief, ICARE seeks to consolidate and streamline the federal government processes involved in foreign adoptions by American citizens while maintaining safeguards to protect birth families, orphans and adoptive families from fraud and abuse. Beyond these process changes, the bill establishes that children adopted in a foreign country by Americans will receive the same treatment and documentation as do children born to American parents abroad. In other words, the Government will no longer view adoption as an immigration process but rather as an American family adding a dependent child - or children -and then returning home. In practical terms, this means the end to the practice of attaining an immigration visa for an adopted child. Instead, each child will be issued a U.S. passport and consular report of birth (equivalent to a birth certificate) by the nearest U.S. Embassy just as is now done with biological children of American parents who give birth overseas.

The second legislative proposal that EACH supports is the NBC Act. This bill was introduced on February 25, 2004. A hearing was held on October 5, 2004, by the Senate Committee on the Judiciary. The NBC Act will define the term “natural born Citizen” as used in the Constitution to include three categories: Any person born in the United States and subject to the jurisdiction thereof; any person born outside the United States to a U.S. citizen parent or parents who are eligible to transmit citizenship; and any person adopted by the age of 18 by a U.S. citizen parent or parents who are eligible to transmit citizenship to a biological child.

The NBC Act is intended to clarify the term “natural born citizen” and end uncertainty about the eligibility requirements to run for the Office of the Presidency. Whether any person born outside the boundaries of the United States is eligible to be President has been an issue debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. Congress should be the institution that defines this term, not the courts. Congress should make it clear that all children of American citizens, who are eligible to transmit their citizenship to their children, are eligible to run for President of the United States. This should apply to all children of American citizens regardless of whether they are born in the United States or born and/or adopted outside the United States by American citizen parent/s.

EACH is also considering seeking a sponsor for a Constitutional Amendment that would seek to accomplish the same objectives as the NBC Act. Although it is clear that in the absence of judicial interpretation of Constitutional language, Congress can express a legislative interpretation of Constitutional terms, a Constitutional amendment would definitively accomplish the same goal as the NBC Act. Even if EACH proceeds to pursue a Constitutional Amendment, it will also continue to pursue enactment of the NBC Act. A statute is quicker and easier to pass than a Constitutional Amendment, so EACH would like to see the NBC Act on the books while it pursues a Constitutional Amendment, if it is deemed necessary to do so.

EACH will also work with groups of adoptive families that run into unnecessary roadblocks in the adoption process, related to the disparities in treatment between biological and adopted children. For example, EACH has successfully aided a group of families adopting HIV+ children from Africa, Haiti and Guatemala. EACH was asked to assist a program created by adoptive families called Project H.O.P.E.F.U.L. These families encountered a three-month delay in getting waivers for their adopted HIV+ children in order to bring them home to the U.S. This delay occurred after the child was fully and finally adopted and after the child had been deemed an “orphan” and eligible for adoption.

These delays, lasting as long as three months, were unnecessary and put these highly vulnerable children’s lives at risk, by leaving them in orphanages with compromised immune systems and improper medical treatment. EACH successfully worked with Citizen and Immigration Services (CIS) at the Department of Homeland Security to shorten this time frame from three months to five days by suggesting changes to the process and working with the families and CIS to accomplish these changes.

The law requiring these children of American citizens to obtain a waiver before entering the U.S. is another example of irrational, unequal treatment of adopted children. Had the same parents given birth to an HIV+ child overseas, there would be no requirement to apply for and receive a waiver for their biological child to enter the U.S. Since foreign adopted children of American citizens continue to be treated as “immigrants” instead of simply children of American citizens, such inequities continue to exist. EACH will work to change the present system, so all children of American citizens are treated as children of American citizens, not immigrants.