Intercountry adoption as child trafficking
Date
2004
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Publisher
Valparaiso University Law Review
Abstract
When is intercountry adoption a form of child trafficking? The purpose of this Article is to attempt to answer this question, particularly from the perspective of international law. As it turns out, the answer is surprisingly obscure. Thus, a second purpose of this Article is to explain why a question so central to the ethical and legal legitimacy of intercountry adoption is so difficult to answer. Part I of this Article explores some of the ideological and ethical dilemmas that initially make it difficult to distinguish intercountry adoption from child trafficking, and argues that an exploration of legal standards may represent a way out of the ideological impasse. Part II explores in some detail the question of when abusive adoption practices constitute illicit child trafficking under international law. Part II.A discusses the development of the international law of trafficking from its roots in anti-slavery conventions. It is particularly significant that the law has often refused to define the mere sale of a person as a form of trafficking; instead, the law has defined illicit trafficking to require some form of exploitation beyond sale, such as enslavement, sexual exploitation, or exploitative labor. Part II.B discusses contemporary international law documents which specifically address abusive adoption practices as a form of trafficking. The recent movement of international law to address abusive adoption practices as a form of illicit traffic or child selling is cautious and incomplete. Initially, it appeared that at least some abusive adoption practices involving the transfer of children for financial consideration had been clearly condemned as a form of illicit child selling or child trafficking. However, a closer analysis of these provisions, in the context of both domestic and intercountry adoption, reveals that their prohibitions of abusive adoption practices as trafficking are largely illusory and ineffective. The law and practice regarding money and adoption turn out to be so mired in legal fictions and regulatory gaps as to make it extraordinarily difficult to distinguish between licit and illicit payments. The law of both domestic and intercountry adoption systems are compromised in their capacity to prohibit abusive adoption practices, because they have habitually permitted market behavior to predominate, while excusing such behavior through legal fictions. The Conclusion compares Judge Richard Posner’s use of verbal formulas in defending his famous market approach to adoption, with the use of similar verbal formulas in the law. These verbal formulas repeat the law’s earlier reluctance to define the sale of a person as a form of illicit trafficking, absent some further enslavement or exploitation of the person. The Conclusion suggests that the law uses verbal formulas and legal fictions to implicitly permit what Judge Posner so controversially advocated, the creation of an adoption market in children. Under these circumstances, it turns out that the actual practices of intercountry adoption are, in systemic forms, a form of child selling or child trafficking. This is not to say that every individual adoption is illicit or unethical, but rather that the adoption system has become so intertwined with market behavior as to, in theory and practice, frequently permit child selling as a form of adoption. While some of the most important sending nations are generally free of child trafficking within their adoption systems, the adoption systems of a significant number of sending nations have been seriously impacted by abusive practices related to money and the transfer of children. This Article concludes that unless significant reforms are adopted, intercountry adoption will eventually be abolished with history judging it as another form of exploitation. Therefore, even assuming that intercountry adoption is not inherently exploitative or a form of child trafficking, it will be judged such, because the legal system and adoption practice have permitted intercountry adoption to operate as a market in human beings. (Author Introduction)
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Keywords
child abuse, trafficking, International Resources, law, policy
Citation
Smolin, D. M. (2004). Intercountry adoption as child trafficking. Valparaiso University Law Review, 39, 281.