THE PRICE WE ALL PAY Human Trafficking in International Adoption

Adoption is already steeped in the legacy of loss for the child and his family. Add to this the recent revelations of the selling of babies for adoption in countries like Vietnam and India, and one needs only to reconsider who exactly is benefiting from adoption. Kevin Minh Allen, a Vietnamese adoptee, explores ways to effectively address this element of human trafficking. These include, but are not limited to, having the U.S. government sign the UN Convention on the Rights of the Child and diverting funds away from the adoption industry and into worthwhile child welfare programs in their home countries.

The Price We All Pay: Human

Trafficking in International

Adoption

By Kevin Minh Allen

AUGUST/SEPTEMBER 2009 CONDUCIVE

“For there is no fool like the one who wants to be fooled.” [David Smolin, lawyer and author, quoted in the article “The Lie We Love” (Foreign Policy, November/December 2008)

In the spring of 2008, when the U.S. State Department released its Summary of Irregularities in Adoptions in Vietnam, I was immediately taken aback by its allegations of corruption made against certain Vietnamese officials and those Adoption Service Providers’ (ASP) found to be complicit in the selling and buying of infants and children for the express purpose of overseas adoption. The report revealed repeated circumvention of current Vietnamese laws that are there to protect families against exploitation and from their children being unnecessarily separated from either them or their birth culture. The report has become my clarion call to both inform myself and others about the pattern of exploitation of Vietnamese children in international adoption and to consider and promote possible solutions to correct this human rights travesty.

However, it has quickly become apparent that there are three main roadblocks to strengthening safeguards against human trafficking in international adoption, at least where the U.S. is concerned.

How the U.S. government defines human trafficking

Noteworthy, is that the U.S. State Department does not consider the procurement of a child for adoption through either coercion or other forms of intimidation, or the adopting out of a child for profit, to be human trafficking. Its rationale can be found in its annual Trafficking in Persons Report from 2005 (21):

Though baby selling is illegal, it would not necessarily constitute human trafficking where it occurs for adoption, based on the Trafficking Victims Protection Act, the UN Protocols on Trafficking in Persons and the Sale of Children, the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, and definitions of adoption established by U.S. jurisdictions.

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 nonexploitative 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 imposition of a reasonable flat rate to conduct the adoption of a foreign child could cause the collapse of the sickening competition between private adoption facilitators and big-name adoption agencies to procure kids for would-be parents

They have also stated that they have taken no action to address concerns or allegations of wrongdoing submitted to them by individuals, ASPs or the U.S. Embassy. Instead, DIA has stated that is in the “humanitarian” interest of the Government of Vietnam to ensure that every proposed adoption is completed as quickly as possible. They note that the ASPs have made a donation for the child, and thus, even if they had the authority to revoke a referral or an adoption, they would not do so because they could not break their contract with the ASP.

How the U.S. defines an “orphan”

Currently, in order for a child to be adopted by an American the child must meet the U.S. State Department’s definition of an “orphan”.

The child must have no parents, or a sole or surviving parent who is unable to care for the child and has, in writing, irrevocably released the child for emigration and adoption.

The child must be under the age of 16 at the time an I-600 petition is filed on his or her behalf with USCIS or a consular officer on his or her behalf. A child adopted at age 16 or 17 will also qualify, provided he or she is a birth sibling of a child adopted, or who will be adopted, under the age of 16 by the same adopting parents.

The adopting parents must have completed a full and final adoption of the child or must have legal custody of the child for purposes of emigration and adoption in the United States.

The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship.

However, separate bills have been recently introduced in the U.S. House and the Senate under the name Families for Orphans Act (FFOA) (HB 3070), sponsored by Diane Watson (D-CA) and John Boozman (R-AR) & SB 1458, sponsored by Mary L. Landrieu (D-LA) and James Inhofe (R-OK) whose purpose is to broaden the term “orphan” and ostensibly encourage foreign countries to place more of their children up for adoption.

(7) ORPHAN- The term `orphan' means any child--

(A) who lacks permanent parental care because of the death, the disappearance of, or the legal, permanent relinquishment of such child by both biological parents;

(B) who is living in the care and custody of an institution;

(C) whose biological parents' rights have been legally terminated; or

(D) whose country of origin has determined lacks permanent parental care.

The Bill uses the figure “more than 132,000,000 orphans worldwide” from a 2006 UNICEF report. Howevever, in an article entitled “The Lie We Love”, published in the November/December 2008 issue of Foreign Policy, the author, E.J. Graff, debunks the shock factor behind this statistic:

But the organization’s definition of “orphan” includes children who have lost just one parent, either to desertion or death. Just 10 percent of the total – 13 million children – have lost both parents, and most of these live with extended family. They are also older: By UNICEF’s own estimate, 95 percent of orphans are older than 5. In other words, UNICEF’s “millions of orphans” are not healthy babies doomed to institutional misery unless Westerners adopt and save them. Rather, they are mostly older children living with extended families who need financial support.

If this bill passes through Congress and is then signed into law by the President, the result would be that the United States would provide financial and other assistance to countries if they, in turn, place more children up for adoption. The existence of this bill reveals the perpetual conflict between two fundamental rights that the world community feels children are endowed with: a safe and secure permanent home and their authentic identities.

How the U.S. chooses to follow international conventions on the rights of the child

The underlying assumption is that the exportation of a child, regardless of context or circumstances, to a more affluent environment is a “humanitarian act”

There are two declarations and two conventions that have been adopted by many United Nations members in order to recognize and further the human rights of children: UN Declaration of the Rights of the Child, 11/20/59; UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally, 12/3/86; UN Convention on the Rights of the Child, 11/20/89; and, The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 5/29/93. The principles contained in each document generally emphasize that children need a secure and stable home and that governments have the responsibility of supporting children and their families in order to keep them together.

More to the point of this essay, though, is that these guidelines on best practices in child welfare all address protecting children from exploitation:

UN Declaration of the Rights of the Child

Principle 9

The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form. …

UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally

Article 20

In intercountry adoption, placements should be, as a rule, be made through competent authorities or agencies with application of safeguards and standards equivalent to those existing in respect of national adoption. In no case should the placement result in improper financial gain for those involved in it.

UN Convention on the Rights of the Child

Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption

Article 1

The objects of the present Convention are –

b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

The United States government has ratified The Hague convention, but has yet to sign the Convention on the Rights of the Child.

When it comes to putting words into practice, though, the U.S. government has had a tendency of investigating and prosecuting individuals. But, the government has not delved any deeper into institutional involvement in corruption, even though the scourge of baby trafficking taints the adoption industry’s very reason for existence.

De-incentivizing international adoption and bringing to justice those who use adoption to exploit human beings

The kidnapping and abduction, coercion and intimidation, and buying and selling of children for adoption are an abomination not just to American values, but also to anyone who takes human rights seriously. Regardless of best intentions and relative (relative being the optimal word here) affluence that many adopted children have experienced, the exposure and punishment of people who engage in fraud and profiteering under the pretense of adoption should be vigorously pursued.

I think it is safe to say that specious and suspect adoptions successfully ride the coattails of above-board adoptions. But, due to the lack of transparency exhibited by the main actors in the adoption industry, the frequent manipulation of documentation of ‘orphan’ status of children, and willful ignorance feigned by the receiving end, the following real solutions need to be applied to this real problem:

1. De-incentivize the social service of adoption.

Jane Jeong Trenka’s essay mentioned the crux of the problem here: In spite of adoption agencies’ contention that they wish they could heal the broken ties between mother and child, there is way too much money to be made off of those broken ties, and adoption agencies have no intention of getting out of the business of finding children for expectant parents. Add to this the large influx of Western money into impoverished countries where laws and regulations against human trafficking are weak at best, and oversight of adoption facilitators and government officials is virtually non-existent, there is no guarantee that necessary and ethical adoptions will ever take place within the industry.

In the U.S. Embassy’s report on the irregularities in Vietnamese adoptions it noted the suspicious phenomenon of “80% of cases [of children in orphanages] were relinquishments, and 20% were abandonments” prior to the first suspension of adoption between Vietnam and the United States in 2002. “Since the Memorandum of Agreement (MOA) went into effect in 2005, those figures have flipped with over 85% of the cases involving desertions. Orphanages not involved in intercountry adoption, however, have reported to the Embassy that they have not seen any increase in the number of deserted children, and the vast majority of children in these facilities are children in care.” In my mind, the driving factor behind the flip-flop in relinquishments and abandonments at these institutions is that they were taking advantage of a foreign demand by offering up a steady domestic supply.

In order to rid international adoption of the corrupting influence of lucrative monetary compensation, the U.S. government should impose a flat rate on all overseas adoptions. The imposition of a reasonable flat rate to conduct the adoption of a foreign child could cause the collapse of the sickening competition between private adoption facilitators and big-name adoption agencies to procure kids for would-be parents. It could also serve to end the practice of sliding scale fees based on race and ethnicity, or whether the child fits the category of “special needs” (i.e., any child not considered a healthy infant).

2. Demand that the U.S. government sign the UN Convention on the Rights of the Child and encourage Congress and the President to uphold the other UN declarations and the Hague convention.

Since U.S. citizens adopt the most children from overseas, the public should demand that the U.S. government recognize and uphold the principles contained in the above documents. If the public were aware and up to date on the principles engendered in those documents, it would slowly come to the consensus that adoption should be a last resort in the scheme of child welfare. By educating the public as to the existence and importance of these documents, its understanding of human rights and its country’s traditional support for said rights in the world community could be furthered, and thus feel more empowered to press the government on this issue.

3. Investigate and prosecute adoption service providers (ASPs) who are found to be circumventing or breaking US immigration law and human trafficking laws.

U.S. Code, Title 22, §7101, is a law that deals with human trafficking. It admittedly focuses on sex and labor trafficking of humans, but some of the subsections could positively apply to human trafficking in adoption. Such as:

(3) Trafficking in persons is not limited to the sex industry. This growing transnational crime also includes forced labor and involves significant violations of labor, public health, and human rights standards worldwide.

(5) Traffickers often transport victims from their home communities to unfamiliar destinations, including foreign countries away from family and friends, religious institutions, and other sources of protection and support, leaving the victims defenseless and vulnerable.

(8) Trafficking in persons is increasingly perpetrated by organized, sophisticated criminal enterprises. Such trafficking is the fastest growing source of profits for organized criminal enterprises worldwide. Profits from the trafficking industry contribute to the expansion of organized crime in the United States and worldwide. Trafficking in persons is often aided by official corruption in countries of origin, transit, and destination, thereby threatening the rule of law.

(21) Trafficking of persons is an evil requiring concerted and vigorous action by countries of origin, transit or destination, and by international organizations.

(24) Trafficking in persons is a transnational crime with national implications. To deter international trafficking and bring its perpetrators to justice, nations including the United States must recognize that trafficking is a serious offense. This is done by prescribing appropriate punishment, giving priority to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses. The United States must work bilaterally and multilaterally to abolish the trafficking industry by taking steps to promote cooperation among countries linked together by international trafficking routes. The United States must also urge the international community to take strong action in multilateral fora to engage recalcitrant countries in serious and sustained efforts to eliminate trafficking and protect trafficking victims.

This is the same law that requires the State Department to release the annual Trafficking in Persons Report, which in 2005 stated that the U.S. government does not consider corruption in international adoption to be human trafficking.

However, both the U.S. and Vietnamese governments have already investigated allegations of corruption, abduction and baby selling, with the Vietnamese government prosecuting a few of those individuals.

With the evidence collected by the U.S. Embassy in Vietnam, as well as additional cases of baby selling for adoption to American citizens collected in other countries, people could lobby their congressional representatives to have the State Department recognize corruption in adoption as human trafficking. People could also inform anti-slavery/trafficking and human rights organizations, such as Free The Slaves, Not For Sale and Polaris Project, about the issues and become allies with them in combating human trafficking in adoption.

4. Encourage the American public to support and encourage domestic adoption and practical child welfare policies in those traditional sending countries.

Poverty, war and natural disasters are just a few of the factors that contribute to the breakdown of the family unit and cause a child to be rootless, so to speak. All the while, Americans are given the impression by the mass media and adoption agency literature that domestic adoption, or extended family and foster care, are absent from foreign countries’ childcare systems. However, that is a completely uninformed and ethnocentric assumption.

Adoption of indigenous children by indigenous parents is not unheard of in countries such as Vietnam, South Korea, China and Thailand. In fact, in Vietnam, when a child is considered abandoned or deserted, Vietnamese law stipulates that prospective Vietnamese adoptive parents be considered first for the adoption of that child. Equally important to keep in mind is that each country, society and community has its own interpretation of how to adequately raise a child, and that should be honored.

All the while, Americans are given the impression by the mass media and adoption agency literature that domestic adoption, or extended family and foster care, are absent from foreign countries’ childcare systems

Instead of putting prospective adoptive parents’ needs ahead of the children’s needs, the American public should be galvanized to volunteer their time, energy and know-how in countries that have traditionally sent their children abroad to be raised by foreign families. Anyone who genuinely cares about the children, their welfare and their community’s welfare would donate money and supplies to NGOs that are working directly with children and their families to help feed, clothe and educate them. With so much money going into the coffers of adoption agencies, lawyers and travel agencies, it could be better spent on equipping orphanages with the supplies that they need, set up and run communal residences for single mothers, or establish schools and boarding houses in rural areas, all in the name of ‘keeping families together’ and ‘the child’s best interests’.

Rachel Schatz Wegner of Ethica wrote a compelling piece on the Voices for Vietnam Adoption Integrity blog called Fighting for “orphans”. In it, she wrestles with the intentions behind the Families for Orphans Act and its unintended consequences. Thankfully, she has readers consider practical alternatives to international adoption:

U.S. governmental organizations such as PEPFAR and USAID team up with NGOs and faith-based groups to fund projects that promote maternal, child, and family health, prevent disease and sickness, and empower communities. In short, these projects sustain and strengthen children and their families, ultimately increasing the ability of a family to care for children as part of a truly comprehensive, global strategy to support children.

Conclusion

I think of international adoption and how it has become a lucrative market for unscrupulous people to exploit a vulnerable population in order to export children overseas to ostensibly satisfy a relatively well-off client class. This demand for healthy infants feeds the cycle of corruption that attempts to cater to its desire for children to build its family. An untold number of children have been either displaced or separated from their birth families, either through coercion, financial motivation or abduction and are now living in adoptive families who remain blissfully unaware or, worse, do not even care. In the meantime, investigations and prosecutions continue to uncover one scheme after another in various countries to procure more babies for the open adoption market.

I wonder if the U.S. State Department would care to revise its statement in its 2005 Trafficking in Persons Report in light of its 2008 report on Vietnam adoption irregularities. Certainly, it cannot continue to abide by the perception that the coercion of birth mothers into giving up their babies or outright selling of their children to brokers, handlers and facilitators for financial gain are simply isolated cases.

We cannot continue to delude ourselves into thinking that the best interests of these children are served by letting money talk instead of our consciences.

The House Committee on Foreign Affairs will first debate the Families for Orphans Act (FFOA). They can be reached at the following location for your feedback:

Phone: (202) 225-5021

Email: http://foreignaffairs.house.gov/contact.asp

Members on the Committee who are also available to hear your opinions:

http://foreignaffairs.house.gov/members.asp

You can also contact the sponsors of the bill:

HB 3070

Diane Watson (D-CA): http://www.house.gov/watson/contact.shtml

John Boozman (R-AR): http://www.boozman.house.gov/Contact/

SB 1458

Mary L. Landrieu (D-LA): http://landrieu.senate.gov/about/contact.cfm

James Inhofe (R-OK): http://inhofe.senate.gov/public/index.cfm?FuseAction=Contact.ContactForm

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Kevin Minh Allen was born Nguyễn Đức Minh on December 5, 1973 near Sài Gòn, Vietnam to a Vietnamese mother and American father who remain unknown to him. He was adopted by a couple from Rochester, NY and grew up in Webster, NY with his two younger sisters. In 2000, he moved to Seattle, WA to pursue a life less ordinary. Kevin is a freelance writer who has had his poetry, essays and book reviews published in numerous print and online venues.

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