17 Jan 2014

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Author of the award-winning book Finding Fernanda. Senior Fellow at the Schuster Institute for Investigative Journalism. Redux Pictures photographer. Read more here.

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10 Questions with Ethica: The TVRPA and Trafficking in Adoption

1.  What is the TVPRA?

The TVPRA is the Trafficking Victim Protection Reauthorization Act of 2011.  It is the reauthorization of the original bill, the Trafficking Victim Protection Act of 2000, which was originally designed to combat human trafficking in the U.S. and establish it as a federal crime to traffic individuals into the country.  It provides visa protection for victims and provides assistance for those who have been trafficked.  You can find out more information here: http://www.ijm.org/justice-campaigns/tvpra. It is a crucial bill for those in the fight against human trafficking and modern-day slavery.

2.  What is Ethica’s proposed amendment?

Although the crimes themselves are eerily similar, trafficking for sex and labor and trafficking for adoption are treated as two entirely separate matters.  In both cases, children are abducted or their parents defrauded to get them into the system.  When the purpose is for sex and labor, the trafficking is a crime, but when the purpose is for adoption, it is not a trafficking crime. In adoption cases, sometimes their parents are told that the children will be getting an education and return at 18, when they will actually be sent overseas to be adopted.  Sometimes their parents are illiterate, and told that they must sign a form to receive pictures or negotiate a medical bill when the form actually relinquishes their children to intercountry adoption, unbeknownst to the parents. Traffickers who intend to exploit children for sex or slavery use identical tactics.

Ethica believes that these two crimes should be treated as one and the same:  they are both trafficking, and they are both inexcusable.  A child who has been trafficked and placed in an adoptive home is no less trafficked than a child who has been sold into slavery.  The ends do not justify the means.  Moreover, there are no sufficient tools to prosecute a perpetrator of trafficking if the child ends up being adopted.  So someone who wants to avoid prosecution in the U.S. need only to abduct a child and place her for international adoption, where he can make a substantial sum of money with relatively few legal risks.

3. Is there any other way to prosecute those accused of child trafficking in adoption?

It seems unbelievable, so we’ll repeat it again:  there is absolutely no legal statute or law that directly punishes trafficking for the purposes of adoption.  Lauryn Galindo was one of the worst known perpetrators of adoption trafficking in adoptions from Cambodia, and she served 18 months in jail for money laundering and visa fraud.  She secured the adoptions of approximately 800 children from Cambodia to the U.S. and it is not clear how many of those children were procured illegally.  She is now free.

The individuals who worked with the agency Focus on Children who trafficked children from Samoa for adoptions in the U.S. didn’t even serve any time in jail.  They were placed on probation for the charge of “aiding and abetting the illegal entry of an alien,” and required to pay a fine.

It is time for the U.S. government to have a legal instrument to directly prosecute those who perpetrate these heinous acts. Although it may be true that visa fraud or money laundering is committed in the process, it isn’t the main offense.  The main offense is removing a child from the home where she or he was supposed to be raised.

4.  Can you talk a little about how the RICO, FCPA, or Hague guidelines apply or do not apply to trafficking in adoption?

None of these existing laws are an appropriate vehicle for prosecuting these crimes. RICO stands for Racketeer Influenced and Corrupt Organizations Act.  In Heinrich et al v. Waiting Angels Adoption Services, Inc, a federal judge found that an adoption agency was not a proper defendant in a RICO action, and the case was dismissed with prejudice.

FCPA is the Foreign Corrupt Practices Act.  It is focused on prosecuting bribery of foreign officials to retain business in another country.  Although this is occasionally the case in adoption cases, it is often other people who are being paid inappropriately.  It also does not address instances of outright abduction, such as the recent case concerning “Karen Abigail” from Guatemala.

The Hague does have some criminal remedies for those who fail to follow the Hague guidelines for adoptions, but these only apply to countries that have signed and implemented the Hague Convention.  While fraudulent adoptions do happen in Convention countries, adoptions are more poorly regulated in non-Hague countries, and in those countries, there is no remedy for force, fraud or coercion.

Adoption fraud benefits no one, except the adoption agency and facilitators who profit financially. It robs the child of his or her identity, robs parents of a child, and creates heartache for adoptive families, biological families and the adoptee. Adoption fraud shuts down countries to intercountry adoption.  In the recent past, Cambodia, Nepal, Vietnam, and Guatemala have all succumbed to the overwhelming pressures of intercountry adoption fraud.  If U.S. government authorities had some tools to use to prosecute the offenders of adoption fraud, perhaps entire country programs would not need to close.

5.  What is Ethica hoping for with this amendment?

The language we are proposing is very limited and specific.  We want to criminalize the procurement of a child through force, fraud, or coercion, disregarding the ultimate destination of the child (whether in slavery or in an adoptive home).  No child should be removed from his or her rightful home through force, fraud, or coercion.  There are plenty of children in the world who need adoptive homes; no one should need to defraud another person to obtain a child for adoption.

The language we are proposing is intentionally specific.  We do not want to malign legitimate adoptions.  Our goal is to preserve legitimate, transparent, ethical adoption for children who need it, and condemn those practices where children are placed for adoption through nefarious channels.  The language is specific, directed, and accomplishes the goal of allowing the prosecution of individuals who jeopardize the integrity of all adoptions.

6. Who can be prosecuted under this amendment?

  • Individuals who abduct children
  • Individuals who lie to parents about where their children are going to be, and when their children will return
  • Individuals who pay parents sums of money for their children (buy babies)
  • Individuals who are complicit in any of these activities:  anyone who instructs someone to obscure the facts about a child’s origins (claiming they are abandoned when they are not)

It is certainly true that the U.S. government authorities will not be able to prosecute every one of these individuals without extradition.  However, there are certainly U.S. citizens, operating on U.S. soil, who are guilty of these crimes and currently operate with impunity.

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