Why the United States should define illegal adoption practices as human trafficking.

Author:Alexander, Jessica
 
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  1. INTRODCTION II. INTERCOUNTRY ADOPTION PROCESS III. PROBLEMS WITH THE PROCESS A. Common Abuses B. Non-Hague Process as Distinct Problem. IV. CURRENT UNITED STATES RESPONSE A. Intercountry Adoption Act B. Denial of Visas C. Criminal Enforcement V. ADOPTION AS TRAFFICKING A. Definition of Human Trafficking B. Exploitation C. Exploitation by Violation of International Treaty VI. RESULT OF USING THE HUMAN TRAFFICKING LABEL A. Weakness of Convention Obligations B. Use of Trafficking Victims Protection Act VII. CONCLUSION * Jessica Alexander received her J.D. from the University of Houston Law Center in May 2014, and received her B.A. from The University of Texas at Austin in May 2008. She would like to thank Boards 37 and 38 of the Houston Journal of International Law for their work in editing this paper. She would also like to thank her parents for their love and support, and for patiently listening to her ramble about international adoptions.

  2. INTRODUCTION

    Every year, approximately 40,000 "intercountry" adoptions take place. (1) An intercountry adoption entails "a change of the adopted child's habitual country of residence but not necessarily of the child's citizenship." (2) Intercountry adoptions represent fifteen percent of the total number of worldwide adoptions. (3) The United States is the leading country for adoptions, both domestic and intercountry, with intercountry adoptions accounting for roughly fifteen percent of all U.S. adoptions. (4) Every year, a number of children are offered for adoption through illegal means or are adopted by those who should not be adopting children. (5) While these practices are not limited to intercountry adoptions, the instances of wrongdoing are difficult enough to uncover in adoptions that one knows about, and virtually impossible to discover when an adoption occurs overseas, outside of the knowledge of the United States. Because of this difficulty, this Comment will talk about intercountry adoptions alone, but the principles discussed can be applied to domestic adoptions.

    In Part II, this Comment will discuss the typical intercountry adoption process from the perspective of a parent in the United States. In Part III, it will discuss the various problems inherent in the current adoption procedures. In Part IV, it will address the issues the United States faces in regulating the process, particularly the difficulty of addressing

    illegal practices that occur wholly in another country. Finally, in Part V this Comment suggests that one option for addressing these issues is to classify illegal adoption practices as human trafficking, a definition that is workable and appropriate for the situations that occur. This definition will thereby increase the number of options that the United States has to increase regulation and control of intercountry adoptions.

  3. INTERCOUNTRY ADOPTION PROCESS (6)

    For an average person or couple in the United States interested in adopting, the process begins by contacting an accredited adoption service provider (sometimes called an agency). (7) The person applies to adopt through the agency, a process that typically involves a lengthy background check, home studies, and a large amount of paperwork. (8) The agency conducts these required steps and makes an initial determination of whether or not the person is eligible to adopt, according to current federal and state statutes. (9) If found eligible by an agency, the person applies to be found eligible to adopt by the U.S. government. (10) Assuming the person or couple receives approval from the government, the agency will then "refer" the prospective adoptive parent to the home country of a child up for adoption. (11) In the referral, the agency notifies the child's home country that a person is eligible to adopt under U.S. law and wishes to be matched to a child. (12) That country will then evaluate the file under its own laws and determine whether or not the person is eligible to adopt. (13) If the person is again found eligible, the country's central adoption authority (required under the Hague Adoption Convention) (14) will match the person to a child and send them an official report, called an Article 16 report. (15) The Article 16 report, named after the article of the Hague Adoption Convention that sets out its requirements, shows that the "Central Authority of the State of origin is satisfied that the child is adoptable" by offering evidence as to the child's identity, family history, medical history, cultural background and other required elements. (16) The report must also give assurance that any consent required for the termination of parental or custodial rights has been given in accordance with Article 4 of the Convention. (17) Specifically, Article 4 requires that consent be given freely, that the consent not have been induced by payment or coerced by any other means, and that the parent or guardian have been informed and understand the effects of their consent, "in particular whether or not an adoption will results in the termination of the legal relationship between the child and his or her family of origin." (18) After the prospective parent accepts the proposed referral (assuming they wish to do so), they may then apply to the U.S. government for provisional approval of the adoption. (19) After provision approval is obtained, a visa application may be submitted at the U.S. embassy or consulate of the sending country. (20) The embassy will make a final determination of the child's adoptability and will determine whether or not a visa can be issued. (21) If a visa is approved, the consular office will notify the adoption authority by issuing an Article 5/17 letter. (22) This letter notifies the sending country that the prospective parents are eligible to adopt, and that the child "is or will be authorized to enter and reside permanently" in the United States. (23) Only after following these steps can an American legally adopt the child in question. (24)

  4. PROBLEMS WITH THE PROCESS

    The process is lengthy (25) and clearly defined, so a natural question is how illegal adoption practices can still take place. The answer is that many of these illegal acts take place overseas in the child's home country, and not in the United States. While there have been instances of egregious illegal adoption practices within the United States, these practices can usually be dealt with using U.S. federal and individual state laws. (26)

    1. Common Abuses

      1. Article 4 Violations (27)

        As discussed above, Article 4 of the Hague Adoption Convention requires that consent for adoption be "given freely" and that it must not be induced by payment or compensation of any kind. (28) It also requires that the person giving consent be properly informed of their rights and the fact that their rights may be terminated as result of that consent. (29) If consent is improperly given, the child is not adoptable according to Article 16 of the Hague Adoption Convention. (30)

        A common Article 4 violation is where the birth parents are coerced into selling their children into orphanages. (31) In Cambodia, one witness spoke of a clinic where women brought their children to be sold. (32) The witness said that the parents were told they would get additional money from abroad, money that never arrived. (33) One mother was approached by a "facilitator" and offered $700 for her child, a clear violation of Article 4. (34)

        A second common violation occurs when parents are not properly informed of the consequences of giving up their child. In one case in Goa, India, a mother took her child to a children's home on the understanding that she would retain visitation rights. (35) Instead, the home had her sign a document that relinquished her rights to the child and authorized the home to give the child up for adoption. (36) The child was eventually returned to her after local non-governmental organizations became involved and applied pressure on those in charge of the home. (37)

        In Guatemala, one attorney was accused of tricking at least two mothers into signing relinquishment papers by telling them that their signatures were required to get their children medical treatment. (38) After the children were taken to the "clinic" for

        treatment, the attorney then informed the mothers that they had signed away their rights and could not see their children again. (39)

        A similar case occurred in Samoa, where four Americans working for a Wyoming adoption agency tricked parents into releasing their rights as parents. (40) The Americans told the parents their children were being sent to an education program in the United States and would one day return. (41) The parents were not informed that the documents they signed gave up their rights to the children forever. (42)

        It is clear from the language of Article 4 that consent is required under the Hague Adoption Convention. (43) It follows then that, in situations where no consent is given, for instance when a child is abducted, any subsequent adoption of that child also violates Article 4 of the Convention. In China, six identified orphanages were alleged to have purchased up to one thousand children from traffickers who acquired the children through abduction. (44) The traffickers specifically targeted migrant workers who they felt police would not take seriously and therefore would be less able to protect their children. (45)

      2. Article 16 Violations

        Article 16 requires each country of origin to prepare a report that includes information about the child's identity, adoptability, family history and other information. (46) If the report is not provided, an Article 16 violation occurs. More importantly, a violation of Article 16 can be found when any of the information is falsified because each state of origin is charged with ensuring that all information is correct and that all children are adoptable. (47) There are a variety of ways in which the information can be falsified, all of which...

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