Case Update (2020): Ntl Council for Adoption v. Pompeo; International Adoption, Hague Adoption Convention, Central Authority Guidance

The National Council for Adoption sued the U.S. government over certain written guidance developed by the U.S. Department of State for Adoption Service Providers (ASPs) under the Intercountry Adoption Act, which is the U.S. federal implementing legislation for the Hague Adoption Convention.  (National Council for Adoption v. Pompeo, Civil No. 18-2704(RCL), 5/19/2020)

The relevant government agency in the child’s country of origin bears the ultimate responsibility for making a “referral” of a child to be placed with a particular family for adoption.  The adoption community, however, has also coined the term “soft referral” to refer to unofficial referrals or a matching process between child and family.  These soft referrals typically occur when prospective parents are matched with a child before the child is confirmed eligible for adoption or before the parents complete the lengthy required home study. 

The NCFA filed the instant case challenging written guidance by the U.S. Department of State that pertains to soft referrals, (the guidance is referred to by the NCFA as “soft referral bans”).   The written guidance or FAQs published by the U.S. Department of State, which is the Central Authority for the Hague Adoption Convention, indicated that certain “soft referral” situations (namely matching a child before the child is eligible or “holding” the child for a particular family until they complete a home study) are unlawful. 

The U.S. District Court for the District of Columbia clarified that the Soft Referral Guidance (SRG) issued by the U.S. Department of State was not a ban on all soft referrals, but only certain referrals that it considered not in line with the Hague Adoption Convention’s mandates. 

The NCFA ultimately was found to lack standing to file this suit. It did not show an actual or threatened injury that is traceable to an alleged illegal activity that would be redressed by a favorable court decision.  The injury must be “concrete” and “demonstrable” to the petitioner’s activities.  The NCFA was unable to show any nexus between its work and the SRG, nor could it show that any of its members (ASPs) even participated in the type of soft referrals that are considered impermissible.