CHAPTER 02 01
LEGAL INTRODUCTORY AND HISTORICAL CONSIDERATIONS CONSIDERATIONS
Trafficking in persons is generally regarded as a contemporary form of slavery, as a criminal act and a violation of human rights63. The definition consists of three elements: activity, means and purpose64. The problematic element revolves around the purpose, which is to be ‘exploitation’. A difference can be made between trafficking for adoption (where adoption is the purpose) and trafficking through adoption (where adoption is the means) 65. Trafficking through adoption would imply that children are adopted to be exploited by the adoptive parents in the forms mentioned in the UN Protocol on Trafficking (sexual, labour, servitude, removal of organs), which is clearly extremely rare. It is trafficking for adoption that we are concerned about, where children are separated from their parents by whatever means with the purpose of gaining profit by making them available for adoption. The Travaux Préparatoires of the UN Protocol on Trafficking and the Explanatory Report on the CoE Convention against Trafficking show that both are in fact intended to cover only the case of trafficking through adoption66. There are examples of abuses in the adoption process being treated as trafficking67. Some argue that either the purpose of exploitation is not a necessary element with regard to illegal adoptions as child trafficking (the illegal elements and the money involved make it trafficking per se) or that an illegal adoption is a form of exploitation (the fertility of birth parents is exploited and the child is exploited to fulfil the desire of the adoptive parents of having a child) 68. The view that illegal adoption as such can be characterised as trafficking can be based on the text of the UNCRC and its OPSC, as well as the 1993 Hague Convention, which do not appear to require exploitation as purpose. More in depth analysis of this debate on what constitutes trafficking in the ICA context is helpfully found in Rotabi’s work.69 If abuses in ICA could be defined as trafficking in persons, the mechanism of compensation for the victims would arguably be quite satisfactory. The UN Protocol on Trafficking as well as the CoE Convention against Trafficking contain provisions on prosecution, assistance, compensation, legal aid and repatriation70. However, as we have seen, the official documents of the two texts do not include abuses in ICA/child laundering in the definition of trafficking, so reliance on this avenue is unlikely to be successful.
De Witte, I (2012). Illegal Adoption as Child Trafficking: The potential of the EU Anti-trafficking Directive in protecting children and their original family from abusive intercountry adoption. MA Thesis, p. 47; available at: http://www.againstchildtrafficking.org/wp-content/uploads/Illegal-Adoption-as-Child-Trafficking-Iara-de-Witte.pdf. 64 Ibid., p. 50; see also: United Nations Office on Drugs and Crime, Human Trafficking, http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html. 65 Ibid., p. 54; see also: Cantwell, N (2005). ‘Is intercountry adoption linked with trafficking for exploitation?’ in ISS/IRC Monthly Review, No. 11-12/2005, November-December 2005; available at: http://www.iss-ssi.org/index.php/en/resources/training 66 Supra 63, pp. 50 and 51. 67 See, for example, the cases of ‘baby snatching’ in Guatemala and the high numbers of intercountry adoptions in the country or the case of the Preet Mandir orphanage in India, which allegedly sourced children from poor families to sell them into intercountry adoptions. 68 Supra 63, pp. 57 – 58; Smolin, D M (2007), ‘Child Laundering as Exploitation’, in Vermont Law Review, Vol. 32, No. 1, pp. 13 – 14; available at: http://works. bepress.com/david_smolin/6/. 69 Rotabi, K S (2014). ‘Force, fraud, and coercion: Bridging from knowledge in intercountry adoption to global surrogacy’. Report for Thematic Area 4 of the International Forum on Intercountry Adoption and Global Surrogacy. International Institute of Social Sciences, ISS Working Paper Series / General Series, Vol. 600, pp. 1 – 30; available at: http://repub.eur.nl/pub/77403. 70 Compare Articles 6 and 8 of the UN Protocol; Articles 12, 15 and 16 of the CoE Convention. 63
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