Illegal Adoption: Is It Human Trafficking?

Babies for Sale

This week, 382 babies were rescued and 1,000 people arrested in a Chinese sting operation against four illegal adoption rings. In January, a Chinese doctor received a suspended death sentence after her conviction for abducting and selling seven babies between November 2011 and July 2013. At least 26 other cases have been linked to this doctor, and several other people are also in criminal detention.

Illegal adoption is especially prevalent in China, as a result of the government’s one child policy and a cultural preference for male children. Of course China is not the only country where illegal adoption occurs. A recent Al Jazeera article highlights orphanages in Nepal deceiving parents and putting children with families up for adoption. A U.S. citizen is facing trafficking charges in Haiti this week, a situation reminiscent of the American missionaries accused of removing Haitian children from the country after the 2010 earthquake. All of these children had at least one parent living, and they were subsequently reunited with family. One American was later found guilty, but her sentence was limited to time already served in jail.

Chinese officials, the media, and many others consider the abduction of children for illegal adoption to be human trafficking, but debate still surrounds the issue.

The 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption establishes common standards and regulations for international adoption, while recognizing that these adoptions can lead to child trafficking.

The 2005 Trafficking in Persons (TIP) report, however, disagrees and states that children who have been put up for adoption through illegal means such as abduction or coercion is not considered human trafficking. The TIP report (2005, 21) states:

“The purposes of baby selling and human trafficking are not necessarily the same. Some individuals assume that baby selling for adoption is a form of human trafficking because trafficking and baby selling both involve making a profit by selling another person. However, illegally selling a child for adoption would not constitute trafficking where the child itself is not to be exploited. Baby selling generally results in a situation that is non-exploitative with respect to the child. Trafficking, on the other hand, implies exploitation of the victims. If an adopted child is subjected to coerced labor or sexual exploitation, then it constitutes a case of human trafficking.”

The 2010 TIP report (2010, 8) reiterates this point:

“The kidnapping or unlawful buying/selling of an infant or child for the purpose of offering that child for adoption represents a serious criminal offense, but it is not a form of human trafficking, as it does not necessarily involve the use of force, fraud, or coercion to compel services from a person. As stated in the travaux preparatoires of the Palermo Protocol, only ‘where illegal adoption amounts to a practice similar to slavery . . . it will also fall within the scope of the Protocol.’”

Thus according to the U.S. State Department if a child is not exploited post-adoption, the adoption act might be illegal,  but it is not considered trafficking. This is because the U.S. Trafficking Victims Protection Act follows the U.N. Protocols on Trafficking in Persons and the Sale of Children in its definition on trafficking.

Even though the U.S. doesn’t recognize trafficking of children for adoption purposes, several countries do and have included illegal adoptions in their anti-trafficking legislation. China is an example, as are Sri Lanka, Liberia, Vietnam, Guatemala, Nicaragua, Venezuela, and Costa Rica. According to various TIP reports (2010, 122) these countries include illegal adoptions in legislation which “does not fall within the international definition of human trafficking.”

In Child Trafficking and Australia’s Intercountry Adoption System,  Siobhan Clair (2012, 13) notes that: “despite the broad international condemnation of child trafficking, a complete and authoritative legal definition remains difficult to establish, especially in the context of inter country adoption,” but she also notes that “the Australian Government appears to accept that child trafficking may occur through the adoption system, even where no exploitation is present.”

David Smolin (2004,  302) writes in Intercountry Adoption as Child Trafficking that international law “has been reluctant to label all sales of children as prohibited forms of child trafficking and has failed to demand penal sanctions for all abusive adoption practices;” however “the law has been moving in the direction of clearly labeling certain abusive adoption practices as prohibited forms of child trafficking or sale of children.”

UNICEF, for its part, considers illegal adoption as child trafficking. In UNICEF’s 2009 report Child Trafficking in East and South-East Asia: Reversing the Trend (2009, 32) adoption is listed as one of the reasons why children are trafficked in the region, but UNICEF notes that “existing literature in the region overwhelmingly concentrates on trafficking for sexual exploitation, while systematic research on more diverse forms, such as trafficking of children for adoption and marriage, is lacking.” UNICEF (2009, 84) also considers illegal adoption exploitation when it recommends  the criminalization of  “all forms of exploitation, including but not limited to: sexual abuse and sexual exploitation, domestic servitude, debt bondage, involvement in armed conflict, organ/tissue removal and transport, illegal adoption and forced marriage.” This directly contradicts what the U.S. asserts in the 2005 and 2010 TIP reports (cited above) that illegal adoption is not exploitation if it does not lead to forced labor or sexual exploitation.

And while international law does not specifically label illegal adoption human trafficking, the UNODC Global Report on the Trafficking of Persons (2012, 12) does: “Trafficking for purposes not specifically mentioned in the Trafficking in Persons Protocol, including begging, forced marriages, illegal adoption, participation in armed combat and the commission of crime (usually petty crime/street crime) accounted for 6 percent of the total number of detected cases in 2010,” and the UNODC (2012, 37) reports that: “cases of trafficking for the purposes of illegal adoption have been detected in 15 countries.”

The U.N. acknowledges that trafficking of children for illegal adoption is not in the Trafficking in Persons Protocol, but it still considers the practice of obtaining children-like the 382 Chinese babies rescued this week-through abduction, coercion, or other illegal means to be child trafficking. This begs the question, why doesn’t the U.S.?

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