Small commodities
how child traffickers exploit children and families in intercountry adoption and what the United States must do to stop them.
Journal of Gender, Race and Justice
Patricia J Meier
I. Introduction
In February 1928, William and Lila Young, a chiropractor-minister and his midwife-spouse, opened a health "sanitarium" in a four-bedroom cottage in East Chester, Nova Scotia, Canada. (1) Before long, the center found a niche providing maternity services for unwed mothers. (2) Unofficially, the Ideal Maternity Home and Sanitarium specialized in selling babies to adoptive parents in the United States. (3) The Young's thereby earned two distinctions. They were quite probably the first international adoption facilitators to provide children to Americans as well as the first child traffickers to profit from such adoptions.
The Youngs' story illustrates the extent to which intercountry adoption and child trafficking are intertwined. For as long as parents have adopted across national borders, child traffickers have profited from those adoptions. Because Americans drive the worldwide demand for adoptable children and because the U.S. State Department has established itself as the world's champion against human trafficking, the United States is obligated to eliminate the trafficking in intercountry adoption. However, U.S. efforts have brought only limited success. It is time for the United States to use its powerful anti-trafficking measures against those who sell children to be adopted by Americans.
Intercountry adoption involves parents who are citizens of one country adopting children who are citizens of another. (4) It is a well-established method of creating or enlarging an American family. (5) Americans adopt more foreign children each year than all other receiving countries combined. (6) In 2006, 20,679 adoptees joined American families. (7) This number has grown rapidly, nearly tripling since 1990, when Americans adopted 7093 foreign children. (8) The total has surpassed 20,000 each year since 2002. (9) To date, 2004 marks the year the most children--22,884--became U.S. citizens through adoption. (10)
Child trafficking is buying, selling, or stealing children for personal gain. (11) The illegal trade in children is one component of a wider global problem of human trafficking. (12) Human trafficking is the third largest and fastest growing illegal trade in the world. (13) Estimates of people trafficked annually range from 480,000 to 2.5 million. (14) Those numbers likely do not include children trafficked for adoption because most discussions of human trafficking limit the definition to trafficking for an exploitive purpose, usually sex or forced labor. (15) Indeed, the majority of trafficked children worldwide probably are sold for forced labor or prostitution. (16) However, each year an unknown but significant number of children also are bought and sold by traffickers who profit from supplying the children to intercountry adoption programs. (17) Generally, unsuspecting adoptive parents then take those children home to Western countries. (18)
The demand for adoptable children creates opportunities for criminal networks that traffic in children. (19) Professor David M. Smolin has identified a cycle of trafficking in intercountry adoption programs. (20) Once a program becomes popular enough to create opportunities for profits, traffickers supply children to the system. (21) When reports of unethical activities reach a high level, officials usually respond by limiting or shutting down the program. (22) Sending and receiving countries regularly suspend intercountry adoption programs because of corruption. (23)
Child trafficking for intercountry adoption is pervasive. In 2001, Romania and Cambodia both closed their programs because of corrupt practices that included baby buying and selling. (24) The year before closing its program, Romania placed 1119 children with American parents. Cambodia similarly placed 402 children in the United States. (25) Those countries remain closed to intercountry adoption. (26) The press also has reported recent instances of trafficking in adoptions from Chad, (27) India (28) China, (29) Kenya (30) Haiti, (31) and Ethiopia. (32) In 2003, the non-profit group Ethica reported that in the previous fifteen years, forty-three percent of the forty largest intercountry adoption programs had been temporarily or effectively closed because of rampant corruption, including child trafficking and abduction. (33)
Recent news stories have chronicled the closures of intercountry adoption programs in Vietnam and Guatemala due to concerns about trafficking and coercion. (34) On September 1, 2008, the United States halted adoptions from Vietnam because a bilateral adoption agreement between the two countries expired. (35) Earlier in the year, the Vietnamese government stopped accepting new adoption applications from American parents. (36) The Vietnamese government's move followed U.S. field investigations that revealed incidents of serious adoption irregularities, ranging from forged or altered documentation to cases where children have been offered for adoption without the apparent knowledge or consent of their birth parents. (37) The report prompted the U.S, Embassy in Hanoi to delay twenty-six visa requests while officials further investigated the almost-final adoptions (38) The State Department says it will not approve a new adoption agreement between the United States and Vietnam until enforceable safeguards and a transparent process are in place to ensure children and families involved in the adoption process "are protected from exploitation." (39)
The U.S. State Department first warned potential adoptive parents against starting adoptions from Guatemala in early 2008. (40) The Central American nation at that point had reached the distinction of sending more children to the United States for adoption per capita than any other country. (41) Guatemala placed 4135 children with American families in 2006. (42) Rampant concerns about adoption facilitators buying babies, stealing babies, and coercing birth mothers to give up babies prompted the Guatemalan government to pass new legislation in December 2007 (43) Those same concerns required the U.S. State Department to suspend American adoptions from Guatemala on April 1, 2008. (44) Until Guatemalan legislators create procedures to implement their new adoption requirements, Americans will not be able to start adoption applications for children from Guatemala. (45)
Ethiopia only began placing significant numbers of children for intercountry adoption recently, but appears to be repeating the cycle. (46) Ethiopia climbed in the ranks of countries sending adoptees to the United States each year since 2004. In 2007, Ethiopia ranked fourth. (47) As Ethiopia places more children with American parents, reports of "irregularities" have begun, including a story of two adoptees going home with the wrong families. (48)
To date, international treaties and U.S. laws aimed at preventing child trafficking in intercountry adoption have failed. (49) Adoption regulations condemn, but do not actually prevent, buying, selling, or stealing children for intercountry adoption. (50) Immigration laws governing adoption visas for children require case-by-case investigation, which is time-consuming, expensive, cumbersome, and ineffective for systemic reform. (51) The federal Trafficking Victims Protection Act criminalizes human trafficking, but cannot be used to combat child trafficking for adoption because its definition of human trafficking is too narrow to include the practices of buying, selling, or abducting children for adoption. (52)
The Ideal Maternity Home scandal was blamed on a combination of factors: a strong market demand, greed, secrecy, inadequate monitoring, ineffective laws, and irresolute officials created an opportunity and an incentive for the Youngs. (53) From that earliest example of baby trafficking in intercountry adoption to today, the contributing forces are the same. (54) The question of how to combat those forces remains.
The answer to ending illicit activities in intercountry adoption is not to end all adoptions among countries. (55) Many children around the world are legitimately available for adoption and need a permanent family placement. (56) International law affirms intercountry adoption as a legitimate option for children who can find no permanent family placement in their countries of birth. (57) However, when child trafficking corrupts adoption, the human rights abuses inherent in trafficking threaten the institution of adoption itself. (58) The answer must lie in prosecuting child traffickers, not in regulating adoptions.
This Note examines why U.S. approaches to eliminating trafficking in adoption have not worked on a broad basis and proposes a new approach: Congress should amend the Trafficking Victim Protection Act to make it applicable to trafficking in adoption. Section II briefly recounts the history of child trafficking in intercountry adoption and describes the pertinent international and U.S. laws. Section III analyzes those laws to conclude that the United States must recognize child trafficking for adoption as exploitive so it can bring its powerful anti-trafficking measures to bear on those who buy and sell children for adoption.
II. BACKGROUND
For as long as American parents have adopted children across international borders, individuals have found ways to corrupt the process. (59) This section provides background in three ways. First, it briefly relates the history of intercountry adoptions to the United States. Second, it explains how intercountry adoption creates both incentives and opportunities for child traffickers while simultaneously presenting little risk to them. Third, it describes the international and domestic laws that regulate U.S. adoptions from other countries as well as the U.S. statute that criminalizes and aims to prevent human trafficking.
A. History of Intercountry Adoption to the United States
Many accounts of the origin of intercountry adoptions to the United States start with the adoptions of orphans from Europe during World War II. (60) Other articles cite the Korean War as the genesis. (61) However, as evident in the story of the Ideal Maternity Home and Sanitarium, Americans adopted babies from Canada as early as the 1930s. (62)
War orphans comprised the first significant cohorts of intercountry adoptees to the United States. (63) World War II soldiers stationed overseas brought home stories of children orphaned and abandoned by the war, and Americans lined up to "save" the children. (64) The trend expanded during the subsequent conflicts in Korea and Vietnam, with adoptive parents still driven by a rescue mentality. (65)
Intercountry adoption became more popular as social changes resulted in the availability of fewer babies through domestic channels. (66) Birthrates in the United States declined after WWII as birth control became widely available. (67) Also, single motherhood lost much of its previous stigma, prompting more birth mothers to raise their babies themselves leaving parents who wanted to adopt with fewer domestic alternatives. (68) As intercountry programs developed, adoptive parents found them increasingly attractive. (69) Intercountry adoption often offers shorter timelines and relatively more certain outcomes than domestic options. (70) Today, more than 20,000 children become Americans through adoption annually. (71) As one researcher put it, "[i]ntercountry adoption is a booming business in the United States." (72)
B. Opportunities and Incentives for Child Traffickers
Westerners demand so many children to adopt and are willing to spend so much money to achieve an adoption that they create opportunities for child traffickers. (73) The economic disparity between receiving and sending countries lays the foundation for schemes that profit unscrupulous entrepreneurs. (74) Countries that receive children adopted from outside their borders almost invariably are developed, Western nations. (75) Countries that provide children for intercountry adoption just as predictably are developing countries with low per-capita annual incomes. (76) Fees change hands, and many times those fees are on the level of small fortunes in the sending country, even if they are considered reasonable by Western standards. (77) The amount of money involved proves irresistible to traffickers. (78)
Individuals in sending countries create systems for procuring children for intercountry adoption. (79) Orphanages may pay per-child fees to "finders" who bring in children. (80) Those payments to finders are problematic because they provide incentives for individuals to obtain children by whatever means they can. (81) Some of those means include taking children in place of debts, outright kidnapping, coercion, and trickery. (82) As the demand for babies goes up, the fees increase. (83)
Corruption follows a predictable pattern in intercountry adoption. (84) Sending countries launch programs that allow Westerners to adopt children, and the successful programs grow. (85) As the programs expand, officials receive reports of corrupt practices. (86) When officials identify persistent or particularly egregious corruption in the program, either the sending country shuts down the program itself or receiving countries place a moratorium on adoptions from that country. (87) Prospective adoptive parents in the West then shift their attention to another country, which becomes popular, attracts the attention of traffickers, and repeats the pattern. (88)
Two characteristics of sending countries correlate with significant child trafficking. (89) One, a "large proportion of the population lives in or near extreme poverty," and, two, the nation adopts enough children to other countries to make it "a significant sending nation." (90) As Professor Smolin points out, poverty alone is not a predictor of child trafficking in adoption. (91) "Nations which place children internationally only sporadically, at very low levels, or not at all, are not in a position to harbor large-scale child laundering conspiracies within their intercountry adoption system. However, once the numbers placed for international adoption begin to rise, the dangers for poor sending nations emerge." (92) Sending-country poverty combined with a critical mass of adoption placements with Western parents creates sufficient incentive for traffickers to supply children to intercountry adoptions.
In addition to financial disparity, laws, regulations, and customs differ dramatically in sending and receiving countries. Adoptive parents are at the mercy of intermediaries who are supposed to help them navigate the systems involved. (93) Prospective parents have no choice but to trust their adoption agency and its network of foreign-country agents and contacts. (94) As one judge put it, "[T]he adoption of children, especially children from foreign countries, is a ... risky undertaking." (95)
Once an adoption program in a sending country attracts the attention of traffickers, the criminals face few risks. (96) Sending countries rarely prosecute traffickers for supplying children for intercountry adoption. (97) Indeed, even adoptive parents and children only rarely discover the status of the children as trafficking victims. (98) Once children are secured, traffickers "launder" them through the adoption system by creating fictitious identities and obliterating the children's histories. (99)
The term "child laundering" describes how traffickers use the official processes of adoption to create new identities for children, effectively "laundering" them into legal "orphans." (100) The practice includes abducting children, coercing parents to sell children, and tricking birth parents into entrusting the care of their children to traffickers who place them for adoption. (101) An orphanage worker on trial for buying babies in China described how easy it was to manipulate the official system in this manner: "We would just randomly choose some place to say that we had picked up the abandoned infant from, and then we would say that we had been informed about the infant from the public hot-line. The police and the notary office didn't find anything unusual" (internal quotations omitted). (102)
Baby brokers typically target very poor, unsophisticated, and socially marginalized birth parents. (103) In China, they snatch children from neighborhoods where migrant workers live. (104) In India, they buy or steal children from lower-status families. (105) In Guatemala, where until recently private attorneys arranged adoptions for foreigners, agents for the attorneys coerced unmarried, poor women who did not know their rights into selling their babies. (106)
The traffickers' methods effectively shield them from discovery and prosecution. (107) When traffickers move children and create new identities for them, they effectively prevent birth parents from finding and recovering their children. (108) Traffickers who claim that illicitly obtained children were abandoned satisfy officials, who then classify the children as orphans. (109) Once a child is classified as an orphan, the sending country can make the child available for international adoption, virtually ensuring that the birth parents will never see the child again, (110) Adoption agencies and adoptive parents seldom question the story. (111) According to Professor Smolin, "Logically, the vast majority of such cases would never come into public view, for the illicit aspects of the case would remain hidden under the legitimating veil of legal adoption." (112)
C. Laws Pertinent to Child Trafficking in Intercountry Adoption
Because intercountry adoption involves international agreements, adoption, and immigration, several laws pertain. International treaties, U.S. federal adoption regulations, and state adoption laws govern intercountry adoption. Federal immigration laws control an adoptee's entry into the United States and citizenship. This Section discusses how these laws approach the problem of trafficking.
1. International Adoption Law
International law addresses intercountry adoption from a human rights perspective, primarily through the 1989 United Nations Convention on the Rights of the Child (CRC) and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the "Hague Convention"). (113) The CRC relies on the "best interests of the child" standard." (114)
State Parties that recognize and/or permit the system of adoption
shall ensure that the best interests of the child shall be the
paramount consideration and they shall ... [t]ake all appropriate
measures to ensure that, in inter-country adoption, the
placement does not result in improper financial gain for
those involved. (115)
The CRC considers intercountry adoption appropriate only when "the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin." (116) Additionally, the CRC requires governments to combat illicit transfers of children across international borders. (117) "Most pertinent to the issue of trafficking in the CRC is Article 35, which requires State parties to '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.'" (118) To date, 193 nations have ratified the CRC. (119) The United States signed the CRC on February 16, 1995, but has not ratified the treaty. (120) Nevertheless, the CRC is relevant because it laid the groundwork for the Hague Convention, which the United States has ratified. (121)
The Hague Convention builds upon and reinforces the CRC. (122) First, the Hague Convention places the best interests of the child above all other considerations in intercountry adoption. (123) Second, the Hague Convention echoes the CRC's preference for in-country over intercountry adoption. (124) Additionally, "[t]he Hague Convention shares with the CRC a concern for child trafficking and attempts to specifically ensure that adoption is not used as a means of child trafficking." (125)
Seventy-six nations are parties to the Hague Convention. (126) Each ratifying state must establish a Central Authority to oversee intercountry adoptions. (127) The Central Authority's responsibilities include cooperating with other countries Central Authorities and taking "all appropriate measures to prevent improper financial or other gain in connection [with] an adoption." (128) When both the sending country and the receiving country are parties to the Hague Convention, the nations agree that adoptions between them will abide by its measures. (129)
The CRC and the Hague Convention reinforce each other and articulate a clear international policy on child trafficking and intercountry adoption. Both instruments condemn child trafficking. (130) Each of the treaties articulates a standard for decision-making based on the best interests of the child. However, neither treaty includes enforcement mechanisms: "The primary effect of broadly adopted human rights treaties is often to identify and express international ideals and standards, rather than to provide an effective means of enforcement. Thus, the CRC and the Hague Convention can be viewed as expressions of international ideals and standards." (131)
Each country must lay its own mantle of rules and regulations upon the framework created by the CRC and Hague Convention to implement and enforce the international policy they articulate. (132) As one might expect, the countries' implementation policies vary. Guatemala, for example, ratified the Hague Convention on March 1, 2002. (133) Even after ratification, individuals concerned with adoption considered Guatemala's largely private system of intercountry adoption to be out of conformance with the Hague Convention and rife with corruption. (134) One researcher described Guatemala's program as "the most commercialized and profiteering system of intercountry adoption yet seen." (135)
The U.S. Department of State warned potential adoptive parents of problems with Guatemalan adoptions in June 2007: "The U.S. Government's ongoing concern with the adoption process in Guatemala results from the lack of government oversight necessary to protect children and families." (136) The warning cited cases of imposters posing as birth mothers to relinquish babies and facilitators deceiving birth parents to obtain children and pointed out such activity violated U.S. law and the Hague Convention. (137) In 2008, Guatemala instituted new processes to implement the Hague Convention. (138)
2. Federal Adoption Law
When the United States issued its warning on adoptions from Guatemala, it had no obligation to insist those adoptions follow Hague Convention guidelines. The Hague Convention only governs adoptions between countries that have both entered into the agreement. (139) At the time, the United States had not ratified and was not bound by the Hague Convention, although the United States had been moving toward compliance since signing the treaty in 1994. (140)
First, Congress passed the Intercountry Adoption Act of 2000 (IAA). (141) Parts of the Act were effective immediately; other provisions were designated to take effect when the United States fully implemented the Hague Convention. (142) In 2007, Congress finalized rules and regulations for the IAA. (143) In December 2007, President George W. Bush signed legislation ratifying the Hague Convention. (144) The Hague Convention became effective for the United States on April 1, 2008. (145) Therefore, the IAA also came into effect on that date. (146)
The IAA echoes the CRC and the Hague Convention in its stated purpose, (147) which is to implement the Hague Convention and "to protect the rights of, and prevent abuses against, children, birth families, and adoptive parents ... and to ensure that [the Hague Convention] adoptions are in the children's best interests." (148) The IAA designates the Department of State as the U.S. Central Authority and directs the Secretary of State to ensure that the Department of State complies with the Hague Convention. (149) The IAA authorizes the State Department, in its role as the U.S. Central Authority, to work with other countries' Central Authorities before an adoption to ensure that adoptees qualify for immigration to the United States. (150)
The IAA also recognizes as final in the United States any adoptions finalized in another Convention country. (151) The statute directs the State Department to produce a report each year that tracks the number of intercountry adoptions to and from the United States, the number of Hague Convention adoptions that subsequently are disrupted (i.e., terminated), the average time required to complete an adoption, and the agencies accredited or debarred from providing adoption services under the Convention. (152)
Finally, the IAA provides enforcement measures including provisions for civil and criminal penalties against anyone who violates the agency accreditation processes under the IAA, makes false statements of material fact in the adoption, or "offers, gives, solicits, or accepts inducement by way of compensation, intended to influence or affect" a decision by an accrediting entity, the relinquishment of parental rights, or a decision by any entity performing a central authority function. (153) The IAA allows civil penalties for someone who engages an agent who violates those provisions as well, although the statute excludes individuals from criminal liability for an agent's actions. (154)
3. State Adoption Laws
Adoption within the United States is a matter of state law. (155) Statutes governing adoption vary widely across the country. (156) In the early part of the twentieth century, the States had their own rampant problems of baby buying and selling for adoption. (157) Today, U.S. domestic adoption laws protect children and birth families through strong consent measures, which have proven effective in stemming baby selling. (158) Cases still surface occasionally, and they are aggressively prosecuted. (159)
Early on in the State reforms, most state legislators recognized that protecting children should form the basis of adoption laws. (160) As they continued to refine adoption laws, lawmakers also implemented protections for birth parents. (161) States that required informed and voluntary release of parental rights in writing before an adoption was finalized saw incidents of baby selling decline. (162) The National Conference of Commissioners on Uniform State Laws (NCCUSL) recognized the value of birth parent consent when it promulgated a model act for adoption, the Uniform Adoption Act of 1994. (163)
4. Immigration Laws
Traditionally, the United States has depended on its immigration laws and procedures to discourage child trafficking in intercountry adoption. (164) The Immigration and Nationality Act (INA) lays out who can immigrate to the United States as an adopted child. (165) Such a child immigrates as the "immediate relative of a U.S. citizen" if three conditions are met. (166) One, the child is an orphan as defined by the Immigration and Nationality Act. (167) Two, the adoptive parents have demonstrated they can and will provide proper care for the child. (168) And, three, no natural parent shall thereafter be accorded any right, privilege, or status. (169)
The INA defines an orphan as a child "who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents." (170) If a living birth parent is identified, he or she must be incapable of providing for the child and must irrevocably release the child for emigration and adoption in writing. (171) Regulations under INA further define "abandonment by both parents" to mean "that the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s)." (172)
The regulations continue with provisions aimed at precluding arrangements that come perilously close to buying children. (173) Dealings directly between birth parents and adoptive parents or between birth parents and unauthorized third parties are discouraged. (174) Releasing a child to prospective adoptive parents or to a third party in preparation for adoption does not constitute abandonment "unless the third party ... is authorized under the child welfare laws of the foreign-sending country to act in such a capacity." (175) Additionally, the regulations distinguish abandonment from the practice of sending children temporarily to an institution for education or care, as is customary among poor populations in many countries. (176) Such a child is not considered abandoned so long as the parents "express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child." (177)
The law clearly declares that buying children is not allowed. An
orphan petition must be denied ... if the prospective adoptive
parents ... or a person or entity working on their behalf, have given
or will give money or other consideration either directly or
indirectly to the child's parent(s), agent(s), other individual(s),
or entity as payment for the child or as an inducement to release
the child. (178)
However, the statute creates an exception. "Nothing in this paragraph shall be regarded as precluding reasonable payment for necessary activities such as administrative, court, legal, translation, and/or medical services related to the adoption proceedings." (179) The regulation is silent on what constitutes "reasonable payment." (180)
D. Laws That Combat Human Trafficking
International treaties and federal laws criminalize human trafficking, although to date the United States has not used anti-human trafficking laws to prosecute trafficking for adoption (181) Different laws define human trafficking differently. International law generally takes a broad approach. (182) American law narrowly defines human trafficking, restricting the term to commercial sex and forced labor. (183)
1. International Anti-Human Trafficking Law
A complete review of international attempts to address human trafficking is beyond the scope of this Note. However, a few key treaties lay a foundation for understanding the policies that drive anti-human trafficking measures. Within the broader issue of human trafficking lies the sub-issue germane to intercountry adoption; child trafficking. Therefore, a general understanding of human trafficking informs a discussion on child trafficking for adoption.
A number of international treaties attempted to address human trafficking throughout the twentieth century. (184) Notable among them was the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which addressed trafficking only for sexual purposes. (185) The modern international agreement is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Palermo Protocol"). (186) International attempts at uniformity were thwarted by intense debate over how to define trafficking. (187) As Janie Chuang explained, a human trafficking definition must reflect the fact that the term encompasses multiple acts: 1) recruitment or transport of individuals, 2) through fraud, force, or coercion, 3) for an exploitive end purpose. (188) "Because each phase may involve a variety of different acts ... constructing a trafficking definition requires deliberate choices as to what types of actions should fall under its umbrella." (189)
After much negotiation, the Palermo Protocol achieved the first legally binding global definition of human trafficking. (190)
"Trafficking in persons" shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat
or use of force or other forms of coercion, of abduction, of fraud,
of deception, of the abuse of power or of a position of vulnerability
or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum,
the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude or the removal of
organs ... The recruitment, transportation, transfer, harbouring or
receipt of a child for the purpose of exploitation shall be considered
"trafficking in persons" even if this does not involve any of the
means set forth [above]. (191)
The United States is a party to the Palermo Protocol, as are 117 other nations. (192)
The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography ("CRC Optional Protocol"), passed earlier in the same year as the Palermo Protocol, prohibits the sale of children for any purpose. (193) It singles out sale as an evil of its own. (194) The CRC Optional Protocol broadly defines sale as "any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration." (195) Additionally, the CRC Optional Protocol directs member states to cooperate with and assist multinational programs to prevent the sale of children. (196) The United States ratified the CRC Optional Protocol on December 23, 2002. (197)
2. United States' Anti-Human Trafficking Law
The United States leads the fight against human trafficking worldwide. (198) The Trafficking Victims Protection Act of 2000 (TVPA) and its subsequent reauthorizations in 2003 and 2005 take a three-pronged approach. (199) The TVPA combats trafficking through prevention, protections for victims, and prosecution. (200)
Like the international conventions, the statute's definition of trafficking is noteworthy. The TVPA criminalizes "severe forms of trafficking in persons." (201) However, Congress limited the definition of a severe form of trafficking to two types of activities. (202) The first is "a commercial sex act that is induced by force, fraud, or coercion." (203) Any trafficking for commercial sex automatically violates the statute if the victim is less than eighteen years old. (204) The second type of activity is forced labor. (205) The statute is silent on what constitutes non-severe forms of trafficking. (206)
In implementing the TVPA, the State Department made clear that child trafficking for intercountry adoption does not qualify as a severe form of trafficking. (207) The 2005 Trafficking in Persons Report ("TIP Report") distinguishes "illegal adoption" and "baby buying" from trafficking. (208) "Unless adoption occurs for the purpose of commercial sexual exploitation or forced labor, adoption does not fall under the scope of the Trafficking Victims Protection Act." (209) The State Department rationale for the policy hinges on the purpose of the trafficking.
The purposes of baby selling and human trafficking are not necessarily the same. 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. (210)
The TVPA authorizes funding for a wide variety of measures to prevent trafficking in source countries. (211) It directs the president to carry out "international initiatives to enhance economic opportunity for potential victims of trafficking as a method to deter trafficking." (212) The economic initiatives may include public education campaigns, microcredit lending programs, or women's empowerment sessions. (213) The Act mandates public awareness campaigns, border interdiction measures, and consultation with non-governmental organizations. (214)
The TVPA also requires the State Department to monitor human trafficking conditions in other countries. (215) Each year, the Secretary of State is required to deliver a report on those conditions to Congress. (216) The annual TIP Report ranks countries in a tier system. (217) Countries that do not meet minimum standards for eliminating trafficking and subsequently do not make significant efforts to comply with those standards could face U.S. sanctions. (218) When countries falls into that category, the TVPA allows the U.S. government to choose to deny "nonhumanitarian, nontrade-related foreign assistance" to such countries. (219)
III. Analysis
Immigration law and federal adoption regulations clearly forbid buying, selling, or stealing children to profit from adoption, yet these illicit practices persist. (220) "The reality is that the endless paperwork and multiple levels of government involved in intercountry adoption currently do little to protect birth families, children, or adoptive families against corruption, fraud, child laundering, child trafficking, and incompetence." (221) Obviously, the immigration and adoption laws have proven largely ineffective against such trafficking.
While many individuals remain optimistic that the Hague Convention will achieve reform, (222) some commentators express reservations about that possibility. (223) "[T]he regulations fail to address the vast majority of the most problematic features of current intercountry adoption practice," according to Ethica's comments on the final regulations implementing the Hague Convention. (224) "In several critical areas of child and family protection, the regulations may actually worsen current conditions. On the whole, the regulations are a bitter disappointment for those who had hoped that their release would signal meaningful and effective regulation." (225) Even if the Hague Convention fulfilled the most optimistic forecasts, its provisions only govern adoptions in which both the sending and receiving nation are parties to the treaty. (226)
It is time to do more. The United States should include trafficking for adoption in its TVPA definition of severe forms of trafficking. Using the TVPA in this way makes sense for at least three reasons. One, trafficking for adoption is exploitive. (227) Buying, selling, and abducting children to profit from intercountry adoption exploits children, birth parents, and adoptive parents. (228) Two, Congressional findings in the TVPA recognized that human trafficking is expanding. (229) One of the ways it is expanding is by supplying children for adoption. (230) Modifying the TVPA to accommodate trafficking in adoption is consistent with the original legislative intent as expressed in the findings. (231) Three, using the TVPA to fight trafficking in adoption fulfills U.S. obligations under international law and is consistent with American public policy as expressed in domestic law. (232)
A. Trafficking for Adoption is Exploitive
The purpose for which a person is trafficked determines whether the trafficking is criminal under TVPA. (233) The statute takes a strong stance against human trafficking, but only when the trafficking is for purposes of commercial sex and forced labor. (234) According to the TVPA, as implemented by the State Department, selling a person is only trafficking if the sale is made for an exploitive purpose: "Trafficking ... implies exploitation of the victims." (235) According to the State Department, prostitution and forced labor are exploitive, but adoption, is not. (236)
This means that buying a baby from desperately poor parents and selling it to an orphanage that then collects $3000 from adoptive parents, as happened with hundreds of babies in China, is not considered trafficking. (237) The distinction also means that stealing a baby from a woman in the hospital who is still groggy from tranquilizers after giving birth, as has been documented in Paraguay, is not trafficking. (238) The definitional difference means it is not trafficking to adopt away children whose families had temporarily entrusted them to a boarding school, as occurred in India. (239)
Black's Law Dictionary defines exploitation as "The act of taking advantage of something; esp., the act of taking unjust advantage of another for one's own benefit." (240) Traffickers who harvest infants "like the cash crop they have become" are taking advantage of the babies for the trafficker's benefit. (241) Whether the children are purchased or abducted, traffickers have taken unjust advantage of them for the traffickers' benefit. (242) The traffickers have, therefore, exploited the children.
Professor Smolin points out that "the sale of a human being for labor or sex is considered clearly exploitative even when labor and sex are not considered inherently exploitative." (243) In analogizing to adoption, Professor Smolin argues that the sale of children for adoption turns the adoption into exploitation. (244) The children are exploited by virtue of the fact that their characteristics as young, healthy, adoptable infants are used for someone else's gain. (245) In the process, the children lose their original families, their birth cultures, and their own identities. (246)
Trafficking for adoption also exploits the birth parents individually and the birth family as a unit. (247) The birth parents are exploited for their fertility. Their exploitation is similar to that of an enslaved sex worker "in the sense that a deeply personal aspect of their being was used by others without any choice on their own part." (248) The birth family as a whole is exploited by being treated, in effect, as no more than a breeding unit. The birth family is treated similarly to how slave owners historically treated slave families in the United States when a slave's capacity to produce and raise more slaves was a part of his or her value. (249)
The State Department's distinction is forced and artificial. Stealing, buying, and selling babies to profit from placing them for adoption is exploitive. Congress should recognize such acts as a severe form of trafficking.
B. Congressional Findings Support an Expanded Definition
Modifying the definition of severe forms of trafficking to include trafficking for adoption is consistent with Congressional findings in the TVPA itself. Congress found that "[t]rafficking 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." (250) The recognition that trafficking is not limited to commercial sex and the use of the word "and" imply that Congress contemplated expanding the concept of human trafficking to include additional significant violations of labor, public health, and human rights standards. Baby buying and selling for intercountry adoption clearly violate international human rights standards. (251) Therefore, in keeping with the Congressional findings that human trafficking is an expanding crime and violates established human rights standards, legislators should expand the definition of severe forms of trafficking to include child trafficking for adoption.
Additionally, Congress found that "traffickers primarily target women and girls who are disproportionately affected by poverty, the lack of access to education, chronic unemployment, discrimination, and the lack of economic opportunities." (252) Traffickers who target women and girls for prostitution and forced labor just as readily target pregnant women and young children to traffic for adoption. (253) Indeed, some reports detail stories of pregnant prostitutes being kept under lock and key until they give birth so that the baby can be sold into adoption. (254)
Congress found that poor women suffer disproportionately under conditions present in many poor countries. (255) A poor pregnant woman is even more vulnerable, especially if she is unmarried. Baby brokers and baby finders target vulnerable pregnant women in sending countries. (256) The baby brokers use threats, coercion, and outright fraud to take babies away from these women. (257) Congress already found that traffickers for the sex trade and forced labor primarily target vulnerable women. (258) Congress should also recognize that women are particularly vulnerable to traffickers who seek babies for adoption and extend the TVPA to protect these women and their children.
Lawmakers also recognized that traffickers increasingly work in organized, sophisticated rings and that human trafficking is the "fastest growing source of profits for organized criminal enterprises worldwide." (259) Criminal organizations often provide trafficked babies for intercountry adoption. (260) The current U.S. policy of excluding baby buying from the TVPA could actually encourage trafficking rings to supply children to orphanages rather than to factories or brothels. If no laws reach trafficking for adoption, but strong measures are in place to discourage trafficking for commercial sex or forced labor, it is reasonable to conclude traffickers will opt for the less risky alternative of trafficking children for adoption, especially as demand for adoptable children grows. Expanding the definition of severe forms of trafficking would at least ensure that human trafficking rings do not find it more attractive to supply children for adoption than to engage in other forms of human trafficking. (261)
Congressional findings in the TVPA stated existing legislation and law enforcement were inadequate to deter human trafficking. (262) Additionally, Congress found that in some countries indifference, corruption, or even participation by officials hindered efforts to prevent trafficking. (263) Lawmakers found that trafficking is aided by corruption in the countries involved. (264) Existing laws and their enforcement also are inadequate to deter trafficking in adoption. (265) Additionally, corruption in sending countries often aids traffickers who supply children for adoption. (266) The TVPA findings apply to illicit activities in intercountry adoption as well as trafficking for sex and labor. Therefore, the same law should address all of these forms of human trafficking. (267)
TVPA findings concerning the growth of human trafficking, the vulnerability of women to traffickers, and the role of corruption in some source countries all apply to trafficking for adoption. Expanding the definition of severe forms of trafficking is consistent with legislative goals as stated in the TVPA findings. Therefore, Congress should expand the definition of severe forms of trafficking to include trafficking for adoption.
C. TVPA Fulfills International and Domestic Obligations
Using the TVPA to protect children from trafficking for adoption is consistent with U.S. obligations under international law and the United States' own statutes related to intercountry adoption. (268) The CRC Optional Protocol on the Sale of Children and the Hague Convention, both ratified by the United States, require party nations to use all domestic measures available to fight trafficking for adoption. (269) Additionally, the U.S. Intercountry Adoption Act criminalizes fraudulent practices in adoption. (270) The IAA expresses a clear public policy against trafficking in adoption. (271) Therefore, amending the TVPA to address baby buying, selling, and abduction in intercountry adoption fulfills the United States' obligations under international law and supports a public policy already expressed in the IAA.
The CRC Optional Protocol on the Sale of Children directs the United States to ensure children are not sold for adoption and that "[i]mproperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption" be fully covered under U.S. criminal law. (272) The Hague Convention is the international law that applies, and it requires the U.S. Central Authority, i.e. the State Department, to take "all appropriate measures to prevent improper financial or other gain in connection to an adoption." (273) The TVPA criminalizes trafficking, allowing for prosecution. (274) Using the TVPA to ensure traffickers do not improperly profit from adoption is an appropriate measure of preventing improper financial gain in adoption.
Additionally, the TVPA mandates the annual Trafficking in Persons Report, which publishes data on each country and evaluates foreign countries' anti-trafficking efforts. (275) The TVPA also makes available sanctions to encourage countries to make significant efforts to combat human trafficking. (276) Finally, the statute provides funding for prevention programs in sending countries. (277) These TVPA provisions are appropriate mechanisms to prevent improper gain from adoption. Therefore, expanding the TVPA to cover trafficking for adoption would fulfill U.S. obligations under the CRC Optional Protocol and the Hague Convention.
The IAA's stated intent is "to protect the rights of, and prevent abuses against, children, birth families, and adoptive parents ... and to ensure that such adoptions are in the children's best interests." (278) The TVPA's three prongs of prevention, protection, and prosecution are directly in line with the IAA's purpose. The TVPA aims to prevent human trafficking,, to protect victims, and to prosecute traffickers. (279) Preventing trafficking for intercountry adoption clearly protects the rights of, and prevents abuses against, children, birth families, and adoptive parents. Preventing stealing, buying, or selling of children for adoption is also in the children's best interests. Prosecution, the third prong of the TVPA, reinforces the criminal and civil penalties created in the IAA and helps to fulfill the Hague Convention's identified need for enforcement. (280)
One criticism of the Hague Convention is that it fails to mandate that each country criminalize child trafficking for adoption or punish such traffickers. (281) The IAA provides for criminal penalties but does not extend them to foreign agents working for adoption agencies. The TVPA criminalizes human trafficking and offers an option for prosecuting traffickers and deterring would-be baby brokers. (282) Perhaps the prosecutorial measures of the TVPA could be employed to hold U.S. adoption facilitators responsible for their overseas contractors because "[i]f the international community is aware of the punishments that may be imposed for baby selling, those who profit from this practice may be much less likely to participate in the black market." (283)
By removing the distinction between child trafficking for adoption and human trafficking for forced labor or paid commercial sex, Congress strengthens all U.S. efforts to combat human trafficking. Currently, the TVPA creates different "levels" of human trafficking. (284) It identifies severe forms, which are subject to prosecution and leaves all others unaddressed. (285) This implies that some kinds of trafficking are not worth prosecuting. General deterrence is one of the recognized purposes of criminal punishment. (286) The primary goal is to protect society from the crime's harm. (287) Excluding child trafficking for adoption from the reach of general anti-trafficking measures hobbles the U.S. ability to protect children and families and to fulfill its obligations under international treaties and its own law. (288)
IV. CONCLUSION
A child who is stolen from her parents and forced to work in a factory is trafficked. (289) But a child who is stolen from her parents and sold to an orphanage to be sent to another country is not. (290) In both cases the offensive action is the same: traffickers exploit the child and the birth family. (291) In the first case, the government has options to prosecute the traffickers under the TVPA. (292) In the second case, the government does not. (293) In the first case, the influence of the State Department's extensive monitoring and ranking system, including its possible sanctions, can be used to encourage the sending country to address its child-trafficking problems. (294) In the second case, those tools are useless. (295) In the first case, U.S. funds can support preventative programs to combat child trafficking for adoption along with other human trafficking. In the second case, those funds are unavailable.
Intercountry adoption is a positive option when it provides a family to a child without one but terribly exploitive when it creates opportunities and incentives for child traffickers to buy or steal children from birth families. U.S. immigration laws and adoption regulations have failed to purge trafficking from intercountry adoption. (296) The recently ratified Hague Convention offers promise, although the accompanying regulations include an exception clause that allows child traffickers to continue to profit from intercountry adoption. (297) As the world's biggest receiving country, the United States bears a heavy responsibility to ensure the children involved truly need adoptive families. (298)
America also leads global efforts to fight human trafficking. (299) Therefore, it makes sense that the United States should apply its powerful anti-trafficking measures to child trafficking for adoption. By amending the TVPA definition of severe forms of trafficking to include such practices, Congress could bring the prosecutorial options, information gathering, and preventative measures of the TVPA to bear against child traffickers. Until the United States recognizes baby buying for adoption as human trafficking, children and families are likely to continue to suffer at the hands of criminal entrepreneurs. (300) The United States should recognize child trafficking for adoption as a severe form of human trafficking.
(1.) BETTE L. CAHILL, BUTTERBOX BABIES: BABY SALES, BABY DEATHS NEW REVELATIONS 15 YEARS LATER 19-20 (2006) (describing the beginning of the Youngs1 maternity home).
(2.) Id.
(3.) Id, at 96 (detailing the home's baby-selling business).
(4.) U.S. DEP'T OF HEALTH & HUM. SERVS. CHILD WELFARE INFO. GATEWAY, ADMIN, ON CHILD., YOUTH, & FAMS. CHILD.'S BUREAU, INTERCOUNTRY ADOPTION, WHERE DO I START?
(2006), http://www.childwelfare.gov/pubs/f_inter/f_inter.pdf (providing facts on intercountry adoption).
(5.) U.S. Dep't of State, Intercountry Adoption, http://travel.state.gov/family/adoption/ adoption_485.html (last visited Sept. 18, 2008) (describing intercountry adoption); see also Nicole Bartner Graff Intercountry Adoption and the Convention on the Rights of the Child: Can the Free Market in Children Be Controlled?, 27 SYRACUSE J. INT'L. L. & COM, 405, 405 (2000).
(6.) Graff, supra note 5 (describing the growth industry of intercountry adoption in the United States since the 1950s); see also David M. Smolin, The Two Paces of Intercountry Adoption: The Significance of the Indian Adoption Scandals, 35 SETON HALL L. REV. 403, 490 (2005) [hereinafter Smolin, Two Faces].
(7.) U.S. Dep't of State, Immigrant Visas Issued to Orphans Coming to U.S., FY2006 [hereinafter DOS Orphan Visas], http://travel.state.gov/family/adoption/stats/stats_451.html (last visited Oct. 2, 2008) (listing number of orphan visas issued by year).
(8.) Id.
(9.) id.
(10.) Id.
(11.) The author offers this broad definition of trafficking based on the definition included in the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res, 54/263, Annex II, art. 2(a), U.N. Doc. A/Res/54/263/Annex II (opened for signature May 25, 2000)., available at http://www.unhchr.ch/html/menu2/6/ere/treaiks/opsc.hlni. "Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration." Id. art. 2(a). Although the United States has not ratified the U.N. Convention on the Rights of the Child, it has ratified this Optional Protocol of the treaty. Status of Ratifications of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (Nov. 14, 2003), http://www.unhchr.ch/html/menu2/6/crc/trcalies/status-opsc.htm. This definition focuses on the act of profiting from the abduction, purchase, or sale of a child. It does not limit trafficking to exploitive purposes as many definitions do. The question of how to define trafficking has triggered much debate. See generally David M. Smolin, Intercountry Adoption as Child Trafficking, 39 VAL. U. L. Rhv. 281 (2004) (describing differing views of whether intercountry adoption itself constitutes child trafficking); Janie Chuang, The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 MICH. J, INT'L L. 437, 443-46 (2006) (describing the debate over the definition at drafting sessions for a trafficking-specific protocol to the U.N. Convention Against Transnational Organized Crime).
(12.) U.S. DEP'T OF STATE, BUREAU OF PUB. AFFAIRS, FACTS ABOUT HUMAN TRAFFICKING (2004), http://www.state.gov/documents/organization/332l6.pdf (providing an overview of human trafficking).
(13.) Anna Zalewski, Note, Migrants for Sale: The International Failure to Address Contemporary Human Trafficking, 29 SUFFOLK TRANSNAT'L L. REV. 113, 120 (2005) (describing the extent of the worldwide human trafficking problem).
(14.) UNESCO Trafficking Project, Trafficking Estimates, http://www.uncscobkk.org/index.php?id=1963 (last visited Sept. 13, 2008) (compiling statistics on human trafficking from major international sources).
(15.) See Trafficking Victims Protection Act, 22 U.S.CA. [section] 7102(8) (2001).
(16.) See UN1CEF, Child Protection from Violence, Exploitation, and Abuse, Child Trafficking, http://www.unicef.org/protection/index_exploitation.html (last visited Sept. 13, 2008) (providing an overview of child trafficking).
(17.) David M. Smolin, Child Laundering: How the Intercountry Adoption System Legitimizes and Incentivizes the Practices of Buying, Trafficking, Kidnapping, and Stealing Children, 52 WAYNE L. Rev. 113, 117 (2006) [hereinafter Smolin, Child Laundering] (explaining how traffickers profit from intercountry adoption).
(18.) Id. at 118-19 (describing a common child-buying scenario in which placement agencies in recipient countries do not intentionally participate in illicit activities).
(19.) Id. at 116 ("Child laundering reduces the humanitarian rationale for intercountry adoption into a cruel facade or protect. Stripped of all humanitarian justification, intercountry adoption is a commercialized and corrupt system driven by the demand of rich Western adults for children.").
(20.) Smolin, Child Laundering, supra note 17, at 127 (explaining how "once the numbers placed for international adoption begin to rise, the dangers for poor sending nations emerge").
(21.) Id.
(22.) Id, at 132 (describing cycles of abuse in intercountry adoption systems).
(23.) Id.
(24.) U.S. Dep't of State, Intercountry Adoption, Romania, http://www.travel.state.gov/familyadoption/country/country_440.html (last visited Mar. 11, 2008) [hereinafter Dep't of State, Romania] (providing updates on adoption from Romania in wake of 2001 moratorium by Romania in response to U.S. report citing "corrupt practices"); U.S. Dep't of State, Intercountry Adoption, Cambodia, http://www.travel.state.gov/family/adoption/country/country_361.html (last visited Mar. 1, 2008) [hereinafter Dep't of State, Cambodia] (describing Immigration and Naturalization Service's December 21, 2001, decision to suspend processing of adoption petitions from Cambodia and the Cambodian government's January 25. 2002, suspension of adoption documentation to American families "in acknowledgement of trafficking concerns and other problems"); see also U.S. Citizenship & Immigration Serv., Questions and Answers about Adoption Processing in Cambodia, http://www.useis.gov/portal/sile/uscis/mcnuitem.5af9bb959I9l35e66f614176543f6dla/?vgnestoid-63e0159cdld3e010VgnVCMI000000ecdl90aRCRD&vgnextchannel=063807b03d92b010VgnVCMl0000045f3d6alRCRD (last visited Mar. 11. 2008) [hereinafter Q&A Cambodia] (explaining the U.S. decision to suspend processing of Cambodian orphan petitions due to deficiencies in the Cambodian adoption process that raise "serious questions about the orphan status of the children being made available for foreign adoptions").
(25.) DOS Orphan Visas, supra note 7.
(26.) Dep't of State, Romania, supra note 24: Dep't of Slate, Cambodia, supra note 24; see also Q&A Cambodia, supra note 24.
(27.) Tom Maliti, France to Investigate Charily Accused of Kidnapping in Chad, WASH. POST, Nov. 4, 2007, at A23, http://www.washingtonpost.com/wp-dyn/content/article/2007/ll/03/AR 2007110301l82.html (reporting on the consequences of an aid group airlifting 103 "orphans" out of Chad for adoption in France).
(28.) See generally Smolin. Two Faces supra note 6.
(29.) ABC News: China s Lost Children, (ABC Television Broadcast May 12, 2008), available at http://abcnews.go.corn/International/Story?id=-4774224&page=I (reporting that of the thousands of children kidnapped in China, many are adopted by foreigners): see also Peter S. Goodman, Stealing Babies for Adoption: With U.S. Couples Eager to Adopt, Some Infants Are Abducted and Sold in China, Wash. POST, Mar. 12, 2006, at A01 (reporting on the Hunan Province baby trafficking scandal).
(30.) Ishbel Matheson, Tracking Down Kenya 's 'Miracle Babies', BBC NEws, Sept. 20, 2004, http://news.bbc.co.uk/2/hi/africa/3672838.stm (reporting on the baby trafficking scandal swirling around a pastor who claimed he could make infertile women pregnant through prayer).
(31.) Ordeal of Children Victims of Trafficking for International Adoption Revealed. International Organization for Migration. http://www.iom.int/jahia/Jahia/PbnAM/cache/offonce?entryld=14958.
(32.) Jane Gross & Will Connors, Surge in Adoption Raises Concern in Ethiopia, N.Y. TIMES, June 4, 2007. available at http://www.nytimcsxom/2007/06/04/us/04adopt.html?pagewanted=1&n=Top/News/Workl/Countries%20and%2f!Territories/Elhiopia&_r=l (reporting on the rapid growth of the Ethiopian adoption program and officials' worries about the "perils of growth").
(33.) Ethica, The Statistics Tell the Story, http://www.ethicanet.org/item.php?recordid-statistics (last. visited Mar, 11. 2008) (discussing illegal intercountry adoption trends).
(34.) Mireya Navarro, To Adopt, Please Press Hold, N.Y. TIMES, June 5, 2008 (reporting on the shuttering of adoptions from Guatemala and Vietnam to the United Suites); see also, Juan Carlos Llorca. AP Enterprise: Guatemala Adoption Fraud Query Throws U.S. Adoptions into Limbo, INT'L. BUS. Times, Mar. 10, 2008, available at http://www.ibtimes.com/articles/20080310/enterprise-guatemala-adoption-fraud-query-throws-adoptions-into-limbo_all.htm; Announcement Regarding Adoption in Vietnam, Embassy of the U.S., Hanoi, Vietnam (Nov. 2007), http://hanoi.usembassy.gov/adoptionstatement 107.html.
(35.) U.S. Dep't of State, Vietnam: Update on September 1, 2008, Deadline (Sept. 5, 2008), http://www.travel.state.gov/family/adoption/intercountry/intercountry_4352.html (notifying adoptive parents that any cases in which a formal referral had not been issued by September 1 would be closed and returned to the adoption service provider).
(36.) U.S. Dep't of State, Vietnam Suspends Acceptance of New Adoption Dossiers, http://www.travelstate.gov/family/adoption/country/country_4318.html (advising U.S. parents of Vietnam's action).
(37.) Id.; see also U.S. Dep't of State, Vietnam Intercountry Adoption Concerns (Jan. 28, 2008), http://www.travel.state.gov/family/adoption/intercountry/intercountry_3940.html (advising parents not to initiate new adoptions from Vietnam until the country signs a new memorandum of understanding with the United States to address concerns about fraud and baby selling for adoption).
(38.) Embassy of the United States, Hanoi, Vietnam, Announcement Regarding Adoption in Vietnam, (Nov. 2007), available at http://vietnam.usembassy.gov/adoptionstatementl107.html (last visited Sept. 18, 2008); see also Brian Morelli, Adoption Finally Leads to Reunion, Press-Citizen (Iowa City), Sept. 15, 2008, at Al (chronicling one family's experience when the visa for their daughter was delayed for investigation).
(39.) Dep't of State, supra note 36.
(40.) U.S. Dep't of State, Warning: Adoptions Initiated on or after December 31, 2007 in Guatemala, (Jan. 9, 2008), http://www.travel.state.gov/family/adoption/intercountry/intercountry_3927.html (advising parents and adoption service providers not to initiate new adoptions from Guatemala due to "great uncertainties surrounding implementation of Guatemala's new adoption law").
(41.) DOS Orphan Visas, supra note 7.
(42.) Id.
(43.) Mireya Navarro, To Adopt, Please Press Hold, N.Y. Times, June 5, 2008, available at http://www.nytimes.conV2008/06/05/fashion/05adopt.htm]?pagewanted=l&sq=guatemala%20adoption%201egislation%20corruption&st=cse&scp=3; see also U.S. Dep't of State, Guatemalan Congress Passes Adoption Legislation, http://www.travel.state.gov/family/adoption/intercountry/intercountry_3903.html (describing steps Guatemala needs to take before Americans may again adopt from the country).
(44.) U.S. Dep't of State, Warning: Adoptions Initiated in Guatemala on or after April 1, 2008 (April 1, 2008), http://www.travcl.state.gov/family/adoption/country/country_4198.html (explaining that the United States is unable to issue documentation required by the Intercountry Adoption Act for issuance of an immigrant visa until Guatemala complies with the standards of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption),
(45.) Id.
(46.) DOS Orphan Visas, supra note 7 (showing orphan visas for children from Ethiopia at around 100 per year until 2004, when 289 were issued; in 2005, 441 visas were issued; in 2006, 732; and in 2007, 1255 were issued).
(47.) DOS Orphan Visas, supra note 7.
(48.) Gross & Connors, supra note 32.
(49.) Smolin. Two Faces, supra note 6, at 475 (asserting that there is a "persistent gap between law and practice" that makes abuses systematic).
(50.) Id. (explaining that most parties involved have strong motivation to favor a systematically abusive system of intercountry adoption); see also Graff, supra note 5, at 430 (declaring international law "has failed in two instruments to control the rapaciousness of U.S. baby consumers").
(51.) Trish Maskew, Child Trafficking: Why Can 't the Immigration Service Prove it?, Ethica, June 6, 2003, http://www.ethicanet.org/INSEvidence.pdf (discussing the reasons U.S. immigration law has not been able to stem illieit practices in intercountry adoption).
(52.) The Office to Monitor and Combat Trafficking in Persons, U.S. Dep't of State. Trafficking in Persons Report 2005 (2005), http://www.state.gOv/g/tip/rls/tiprpt/2005/46606.htm [hereinafter DOS TIP Report 2005J (distinguishing human trafficking from illegal adoption and baby buying).
(53.) Cahill, supra note 1, at 96 (describing the factors that allowed the Ideal Maternity Home baby trafficking to flourish).
(54.) See generally Smolin. Child Laundering. supra note 17, at 115 (arguing that the intercountry adoption system "legitimizes and incentivizes" stealing, kidnapping, trafficking, and buying children).
(55.) Sara R. Wallace, Note, International Adoption: The Most Logical Solution to the Disparity Between the Numbers of Orphaned and Abandoned Children in Some Countries and Families and Individuals Wishing to Adopt in Others?, 20 ARIZ. J. lNT'L & COMP. L. 689, 723 (2003) (concluding that intercoanlry adoption is the most logical solution to the disparity between the number of children in some countries who need families and the number of parents in other countries who want to adopt).
(56.) Id. at 689 (citing Margaret Liu. International Adoption: an Overview, 8 TEMP. INT'L & COMP. L.J. 187, 187 (1994)).
(57.) Id. at 694-706 (2003) (discussing international law that pertains to intercountry adoption); see also Elizabeth Bartholet, International Adoption: Propriety, Prospects and Pragmatics, 13 J. Am. Acad, Matrim. Law 181, 192 (1996) (describing the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption as an "enthusiastic endorsement of international adoption as a good solution for children without parents").
(58.) Smolin, Child Laundering, supra note 17, at 116 (arguing that corrupt practices threaten the ethical and legal legitimacy of intercountry adoption); see also Navarro, supra note 34 (quoting adoption provider Kjersti Olson, "It's really important to put an end to corruption without putting an end to a child's right to a family.").
(59.) Jonathan G. Stein, A Call to End Baby Selling: Why The Hague Convention on Intercounty Adoption Should Be Modified to Include the Consent Provisions of the Uniform Adoption Act, 24 T. JEFFERSON L. Rev. 39, 64 (2001) (maintaining that baby selling is not a new practice in intercountry adoption) (citing Holly C. Kennard, Curtailing the Sale and Trafficking of Children: A Discussion of The Hague Conference Convention in Respect of Intercountry Adoptions. 14 U. Pa. J. Int'l Bus. L. 623, 626 (1994) (describing the prevalence of child trafficking throughout the history of intercountry adoption).).
(60.) Wallace, supra note 55, at 692-94 (relating the history of international adoption by Americans and noting the shortage of "highly desired "healthy white infants,' in the United States").
(61.) Graff, supra note 5, at 405 (tracing the start of intercountry adoption to the end of the Korean War).
(62.) Cahill, supra note 1, at 86 (relating the activities of the lawyer who handled adoption placements for the Ideal Maternity Home).
(63.) Wallace, supra note 55, at 692 (describing how returning U.S. soldiers created awareness of children orphaned and abandoned by WWII and the Korean War).
(64.) Id. (noting that international adoption developed originally to save children affected by WWII from famine and other natural disasters).
(65.) Id. (stating "[i]nternational adoption developed as a vehicle to "save' these children"); see also Cynthia Ellen Szejner, Note, Intercountry Adoptions: Are the Biological Parents' Rights Protected?, 5 WASH. U. Global STUD. L. Rev. 211, 211 (2006) (describing several war-prompted waves of intercountry adoption).
(66.) Wallaces supra note 55, at 689 (citing Margaret Liu, International Adoption: An Overview, 8 Temp. Int'l & Comp. L.J. 187. 187 (1994)).
(67.) Kathleen L. Manley, Birth Parents: The Forgotten Members of the International Adoption Triad, 35 Cap. U. L. Rev. 627, 629-30 (2006) (discussing factors lending to the drop in availability of domestic-born adoptable infants in the United States).
(68.) Id.
(69.) Margaret Liu, International Adoptions: An Overview, 8 Temp. Int'l & COMP. L.J. 187. 192 (1994) (explaining the growing popularity of intercountry adoption despite uncertainties of the process),
(70.) Bonnie Miller Rubin, Parents in U.S. Choose to Go Global for Predictability, CHI. Trib., Nov. 11, 2007 (discussing factors that make intercountry adoption attractive).
(71.) DOS, Orphan Visas, supra note 7.
(72.) Graff, supra, note 5, at 405 (describing the market forces of intercountry adoption).
(73.) Smolin, Child Laundering, supra note 17, at 175 ("The transfer of Western wealth into sending nations is the primary vulnerability of the intercountry adoption system.").
(74.) Id. ("Western funds provide an incentive to engage in child laundering which attracts unscrupulous persons into the system while tempting even charitable child welfare institutions into unscrupulous conduct.").
(75.) Bartholet, supra note 57, at 182 (noting intercountry adoption tends to involve adoption by the "privileged classes in the industrialized nations," of children from "the least privileged groups in the poorest nations"): Notesong Srisopark Thompson, Note, Hague is Enough?: A Call for More Protective, Uniform Law Guiding International Adoptions; 22 WIS. INT'L L.J. 441, 446 (2004) (noting that "children are primarily adopted from less developed countries by citizens of more developed nations.").
(76.) Thompson, supra note 75, at 446.
(77.) Smolin, Child Laundering, supra note 17. at 128 ("Spending five to twenty thousand dollars within India or Guatemala on an adoption would be like spending fifty to five hundred thousand dollars on an adoption within the United States.").
(78.) Id. at 126 ("Large amounts of money, relative to the economy of the sending country, create a temptation to launder children.").
(79.) Smolin, Child Laundering, supra note 17. at 117-25 (describing the many illicit ways "child Finders" and other individuals procure children to supply the intercountry adoption market).
(80.) Id.
(81.) Id.
(82.) Id.
(83.) Deng Fei, The Hengyang Infant Dealing Case: Benevolence or Vice? That Question has Generated Far-Reaching Controversy, PHOENIX WKLY., Apr. 11, 2006, English translation available at http://research-china.blogspot.com/2006/10/hunan-one-year-after-part-one.html (describing testimony that indicated traffickers paid more for babies when demand was high).
(84.) Smolin. Child Laundering, supra note 17, at 132 (describing cycles of abuse in intercountry adoption).
(85.) Id. at 132-33.
(86.) Id.
(87.) Id. at 132.
(88.) Id, at 135 (explaining that the "interest shifts to another poor nation, and the cycle of abuse begins over again").
(89.) Id. at 126.
(90.) Smolin. Child Laundering, supra note 17, at 126 (defining extreme poverty as per capita income under one dollar per day).
(91.) Id. at 125-26 (noting that "most of the poorest developing nations play no significant role in the intercountry adoption system").
(92.) Id. at 127.
(93.) Smolin, Two Faces, supra note 6 (explaining why adoptive parents cannot police intercountry adoption for corruption).
(94.) Id.
(95.) Dresser v. Cradle of Hope Adoption Ctr., Inc., 358 F. Supp. 2d 620. 623 (E.D. Mich. 2005) (addressing parties in wrongful adoption suit involving intercountry adoption).
(96.) Smolin, Child Laundering, supra note 17. at 135 ("Societies in which children can be bought and sold for sex and labor for a few hundred dollars or less, with police and public officials bought off, easily transition into the business of supplying paper-adoptable 'orphans.'"); Zalewski, supra note 13 ("potential traffickers arc attracted by the combination of the relatively low risk of prosecution and substantial profits gained through this practice.").
(97.) One recent exception is China, which sentenced nine people to prison terms and fired or sanctioned twenty-three civil employees for trafficking babies from Guangdong Province to Hunan Province over three years. The traffickers sold the children to one government orphanage, which in turn sold some of them to five neighboring orphanages. All six orphanages placed the children for intercountry adoption and collected $3000 fees for each. 23 Officials Punished for Child Trafficking, Feb. 26, 2006. available at http://english.gov.cn/2006-02/26/content_211254.htm.
(98.) Smolin, Child Laundering, supra note 17, at 1 17 ("Logically, the vast majority of such cases would never come into public view, for the illicit aspects of the case would remain hidden under the legitimating veil of legal adoption.").
(99.) Id.
(100.) Id. at 115 (analogizing child laundering to the laundering of illegally obtained money through a legitimate business).
(101.) See generally id.
(102.) Fei, Hengyang, supra note 83 (describing trial testimony of trafficker explaining how he and his co-conspirators made stolen and purchased babies into legal orphans by claiming they were foundlings).
(103.) Smolin, Child Laundering, supra note 17, at 118 (baby finders in sending countries generally target the poor of already poor societies).
(104.) See, e.g., Goodman, supra note 29; ABC News, supra note 29.
(105.) Smolin, Two Faces, supra note 6. at 456-58 (describing the victimization of the Lambada tribe by traffickers supplying children for intercountry adoption).
(106.) Graff, supra note 5, at 410. ("'If a woman later changes her mind she is simply threatened by the better educated and infinitely more powerful, in the eyes of the victimized mother, attorney.").
(107.) Smolin, Child Laundering, supra note 17 at 135-63 (describing child laundering cases in several countries).
(108.) Smolin, Two Faces, supra note 6, at 461 (describing how difficult it was for birth parents to recover a child whose identity had been changed even when the child "rushed to embrace her mother upon spotting her").
(109.) Fei, supra note 83 (describing how traffickers sold hundreds of babies to six orphanages over three years without arousing official suspicion).
(110.) However, a Guatemalan birth mother recently recovered her child. Ana Escobar searched hospitals and orphanages for her daughter after a trafficker stole the six-month-old at gunpoint, spotting her with an adoptive mother Fourteen months later. DNA tests confirmed the girl's parentage, and she returned to her mother. Adopted Guatemala Baby 'Stolen'. BBC News, July 24, 2008, http://news.bbc.co.Uk/2/hi/americas/7522678.stm.
(111.) Smolin, Child Laundering, supra note 17. at 115 (pointing out that "most within the adoption system, including adoption agencies, adoptive parents, and sometimes even adoptees, have motivations for minimizing or ignoring evidence of such conduct.").
(112.) Id. all 17.
(113.) See generally Graff, supra note 5.
(114.) Smolin, Two Faces, supra note 6, at 409 (describing Convention on the Rights of the Child and intercountry adoption).
(115.) Convention on Rights of the Child, art. 21(d). opened for signature Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (Sept. 2. 1990), [hereinafter CRC].
(116.) Smolin, Two Faces, supra note 6, at 407--08 (citing CRC, supra note 114, art. 21(b)).
(117.) Virginia Garrard, Note, Sad Stories: Trafficking in Children--Unique Situations Requiring New Solutions, 35 Ga. J. INT'L, & COMP. L. 145, 160 (2006) (detailing anti-trafficking provisions of CRC).
(118.) Id, (citing CRC. art. 35).
(119.) CRC, supra note 115, http://www2.ohchr.org/english/bodies/ratification/11.htm (listing signatories and parties to the CRC as of Feb. 12, 2008).
(120.) Id.
(121.) Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of intercountry Adoption, Status table 33, opened for signature May 28, 1993, http://www.hcch.net/index_en.php?act=conventions.status&cid=69 [hereinafter Hague status table] (last visited Mar. 12, 2008).
(122.) Graff, supra note 5, at 417 (pointing out the two conventions' similar concerns about child trafficking for adoption).
(123.) Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, preamble, May 29, 1993, S. Treaty Doc. No. 105-51, 32 I.L.M. [hereinafter Hague Convention]; see also Elisabeth J. Ryan, Note, For the Best Interests of the Children: Why the Hague Convention on Intercountry Adoption Needs to Go Farther, As Evidenced by Implementation in Romania and the United States, 29 B.C. Int'l & Comp. L. Rev. 353, 363 (2006) (asserting "[t]he most basic and vita) purpose of the Hague Convention is to ensure that intercountry adoptions are made 'in the best interests of the child.'").
(124.) Smolin, Two Faces, supra note 6, at 408 (describing CRC view of when intercountry adoption is appropriate).
(125.) Id. at 417 (pointing out that Hague Convention specifically seeks to ensure adoption is not used as a means of child trafficking).
(126.) Hague status table, supra note 120.
(127.) Hague Convention, supra note 122, art. 6-13, 32 I.L.M. at 1134. 12%. Id.
(128.) Id.
(129.) Id.
(130.) CRC, supra note 115, art. 21; Hague Convention, supra note 123, art. 32.
(131.) Smolin, Two Faces, supra note 6, at 407 (explaining that much of international law is "arguably hortatory").
(132.) D. Marianne Blair, Safeguarding the Interests of Children in Intercountry Adoption: Assessing the Gatekeepers, 34 Cap. U. L. Rev, 349, 385 (2005) (pointing out that the key to deterring trafficking for intercountry adoption lies in the legislation enacted in individual sending and receiving countries).
(133.) Hague status table, supra note 121.
(134.) Juan Carlos Llorca & Julie Walson, Guatemalan Adoption Raid Riles Parents, USA TODAY, Aug, 16, 2007, available at http://www.usatoday.com/news/topstories/2007-08-16-492777574_x.htm (reporting on the raid of Casa Quivira adoption home in Guatemala to address concerns about child trafficking).
(135.) Smolin, Child Laundering, supra note 17, at 168 (describing Guatemala as a baby farm to the United States).
(136.) U.S. Dep't of State, Guatemala Status of Intercountry Adoptions and the Hague Convention (June 13, 2007), http://travel.state.gov/family/adoption/convention/convention_3257 .html (last visited Mar. 12, 2008).
(137.) Id
(138.) N.C. Aizenman & Manuel Roig-Franzia, Prospective Parents Caught in the Middle Guatemala Adoption Reform, SEATTLE TIMES, Dec. 7, 2007.
(139.) Hague Convention, supra note 122.
(140.) Ryan, supra note 123, at 371 (discussing U.S. steps to implement the Hague Convention).
(141.) Intercountry Adoption Act of 2000, 42 U.S.C. [section] 14901 et seq. (2001).
(142.) 2000 Acts. Pub. L, No. 106-279, Title V, [section] 505, 114 Stat. 844 (2000).
(143.) Interpreter Releases Daily, DOS Projects April 2008 Effective Date for Hague Convention on Intercountry Adoption, I, (Nov. 20, 2007).
(144.) Id.
(145.) Id.
(146.) 2000 Acts. Pub.L. 106 279. Title V, [section] 505, 114 Stat, 844 (2000).
(147.) 42 U.S.C. [section] 14901 (2001).
(148.) id. [section] 14901(b)(2).
(149.) id. [section] 14901-14945.
(150.) Id. 14911.
(151.) Id. [section]14931.
(152.) 42 U.S.C. [section] 14914(2007).
(153.) 42 U.S.C. [section] 14944(a) (2) (2001).
(154.) id. [section] 14914(b) and (c).
(155.) Stein, supra note 59, at 43 (describing domestic U.S. adoption).
(156.) Id. at 53 (providing a brief history of the Uniform Adoption Act).
(157.) Id. at 50--52 (describing baby-buying in U.S. adoption).
(158.) Stein, supra note 59, at 52 (asserting consent taws have greatly reduced baby selling).
(159.) Id. at 49 (relating the genesis of formal domestic system of U.S. adoption).
(160.) Id. (describing legislators' thinking about child welfare).
(161.) Id. (further describing legislators considering rights of birth parents).
(162.) Id. at 58-63 (providing a brief history of domestic U.S. adoption).
(163.) See Jonathan G. Stein, A Call to End Baby Selling: Why the Hague Convention on Intercountry Adoption Should be Modified to Include the Consent Provisions of the Uniform Adoption Act, 24 T, JEFFERSON L, REV. 39, 53-59 (2001) (describing the Uniform Adoption Act consent provisions).
(164.) Ethica, Child Trafficking: Why Can't the Immigration Service Prove It? 1 (June 6, 2003), www.ethicanet.org/INSEvidence.pdf.
(165.) 8 U.S.C. [section] 1101 (2000).
(166.) Id.
(167.) Id. [section] 1101(b)(1)(F)(i).
(168.) Id.
(169.) Id.
(170.) 8 U.S.C. [section] 1101(b)(1)(F) (2000).
(171.) Id.
(172.) 8 C.F.R. [section] 204.3(b) (2007).
(173.) Id. [section] 204.3(i).
(174.) Id.
(175.) Id. [section] 204.3(b).
(176.) Smolin, Child Laundering, supra note 17, at 119--20 (describing customs in some sending countries of entrusting care to institutions due to poverty).
(177.) 8 C.F.R. [section] 204.3(b) (2007).
(178.) Id. [section] 204.3(i).
(179.) Id.
(180.) Id.
(181.) The United States has prosecuted individuals in just two high-profile cases of child trafficking for intercountry adoption and in neither case did the government file charges under anti-trafficking statutes. See Smolin. Child Laundering, supra note 17, at 135-48; Primetime Live: Heroic Young Girl Tells of Her Child Porn Ordeal ... (ABC television broadcast Dec. 1, 2005), available at http://ancnews.go.com/Primetime/LegalCenter/story?id=1364110 [hereinafter Primetime Live]. In the first case, U.S. citizen Lauryn Galindo facilitated hundreds of American adoptions of Cambodian children, many of whom she knew were not orphans. See Smolin, Child Laundering, supra note 17, at 135-48. Galindo falsified documents, diverted adoption fees for her own personal use, and in several instances directed adoptive parents to pay cash directly to birth mothers. Id. Federal prosecutors in the Western District of Washington charged Galindo with visa fraud, conspiracy to commit money laundering, and structuring currency transactions. United States v. Galindo, 161 Fed. App'x 735, 736 (9th Cir. 2006); see generally Brief of Appellee, United States v. Galindo, 161 Fed. App'x 735, 736 (9th Cir. 2006) (No. 04-30502), 2005 WL 2596952; Paul Shukovsky, Adoption Broker Gets 18 Months, Seattle Post Intelligencer, Nov. 20, 2004. In the second case, a pedophile adopted a five-year-old girl from Russia to sexually abuse her. Primetime Live, supra. After he spent five years raping and molesting her and distributing pornographic photos of her over the internet, the government charged him under federal child pornography statutes and state sexual abuse statutes. Id.; David Conti, Child Abuse 'Monster' Gets 35-70 Years, PITTSBURGH TRIB). REV., Nov. 18, 2005; see also Sexual Exploitation of Children over the Internet: What Parents, Kids and Congress Need to Know about Child Predators: Hearing on May 3, 2006, Before the House Energy and Commerce Committee Subcommittee on Oversight and Investigations, 109th Congress (2006) (testimony submitted by Masha Allen, victim).
(182.) Jennifer M Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 FORDHAM L. REV. 2977, 2982-85 (2006) (delineating the difference between the definition in the U.N. Protocol and the U.S. TVPA); see also Chuang, supra note 11, at 443 (relating international debate on the definition of trafficking).
(183.)22 U.S.C. [section] 7102(8) (2004).
(184.)Garrard, supra note 117, at 158 (providing an overview of international agreements to address involuntary servitude and trafficking in persons).
(185.) Chuang. supra note 11, at 442 (providing an overview of international efforts to fight human trafficking).
(186.) Id.
(187.) Id.
(188.) Id. at 443 (explaining why a. consensus on a definition of human trafficking was difficult to reach).
(189.) Id.
(190.) See The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, G.A. Res. 55/25, available at http://www.unodc.org/documents/trcaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf.
(191.) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the U.N. Convention against Transnational Organized Crime, G.A. Res. 55/25, Annex II, U.N. GAOR, 55th Sess., U.N. Doc. A/55/383 (Nov. 15, 2000).
(192.) United Nations Office on Drugs and Crime, Signatories to the United Nation-; Convention against Transnational Crime and its Protocols, http://www.unodc.org/unodc/en/treaties/CTOC/signatures.html.
(193.) Office of the High Commissioner for Human Rights, Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, G.A. Res. 54/263 (May 25, 2000), S. TREATY DOC. NO. 106-37 (2000), available at http://www.unhchr.ch/html/menu2/6/crc/treaties/opsc.htm. [hereinafter Optional Protocol CRC].
(194.) Id. at art. 2(a).
(195.) Id.
(196.) Id. at art. 10.
(197.) CRC, supra note 115, http://www2.ohehr.org/english/bodies/ratification/11.htm (ratification statistics as of Feb. 28, 2008).
(198.) See generally Chuang, supra note 11; see also Angela D, Giampolo, The Trafficking Victims Protection Reauthorization Act of 2005: The Latest Weapon in the Fight Against Human Trafficking, 16 Temp, Pol, & Civ, Rts. L. Rev, 195 (2006).
(199.) Trafficking Victims Protection Act of 2000, 22 U.S.C. [section] 7101(a) (2001).
(200.) Trafficking Victims Protection Reauthorization Act of 2005, 22 U.S.C. [section] [section] 7104, 7105, 7108(2006).
(201.) Id. [section] 7102(8).
(202.) Id.
(203.) Id.
(204.) Id.
(205.) Id.
(206.) 22 U.S.C. [section]7102(8) (2006).
(207.) DOS TIP Report 2005, supra note 52 (explaining the rationale behind excluding trafficking for adoption from the reach of the TVPA).
(208.) Id.
(209.) Id.
(210.) Id.
(211.) 22 U.S.C. [section] 7104 (2007).
(212.) Id [section] 7104(a).
(213.) Id. [section] 7104.
(214.) Id.
(215.) Id. [section] 7103.
(216.) Id. [section] 7111 (laying out specifications for the report).
(217.) Chuang, supra note 11, at 453 (describing how the United States ranks countries in its TIP Report); see also U.S. Dep't of State, Trafficking in Persons Report, http://www.state.gov/g/tip/rls/tiprpt/ (linking to TIP reports for each year since the TVPA was enacted).
(218.) Chuang, supra note 11, at 439 (describing the effect of the sanctions provision); see also U.S. Dep't of State, Trafficking in Persons Report, http://www.state.gov/g/tip/rls/tiprpt/ (linking to TIP reports for each year since the TVPA was enacted).
(219.) 22 U.S.C.A. [section] 7107(a) (2007) (describing the sanctions as a "policy of the United States"). See also Chuang, supra note 11, at 452 (explaining the sanctions regime under TVPA).
(220.) David M, Smolin, Child Laundering as Exploitation: Applying Anti-Trafficking Norms to Intercountry Adoption Under the Coming Hague Regime, 32 VT. L. REV. 1, 29 (2007) [hereinafter Smolin. Applying Anti-Trafficking Norms] (estimating that thousands of children have been stolen, purchased, or kidnapped for intercountry adoption).
(221.) Id. at 28 (explaining the paradox of intercountry adoption: continuing trafficking problems amid endless, meaningless forms).
(222.) See generally Graff, supra note 6.
(223.) Ethica, Comments on the Final Regulations Implementing the Hague Adoption Convention (Mar. 2006), http://www.ethicanet.org/HagueRegCorinnenls.pdf.
(224.) Id.
(225.) Id.
(226.) Hague Convention, supra note 123.
(227.) See generally Smolin, Applying Anti-Trafficking Norms, supra note 220 (detailing the several ways trafficking for adoption constitutes exploitation).
(228.) Id.
(229.) 22 U.S.C.A. [section] 7101(b)(3) (2004) (describing trafficking in persons as a "growing transnational crime" that "involves significant violations of labor, public health, and human rights standards worldwide").
(230.) ABC News, supra note 29 (reporting on human traffickers in China).
(231.) 22 U.S.C. [section] 7101 (2001),
(232.) 42 U.S.C. [section] 14944 (2001) (providing penalties for anyone who illicitly facilitates adoptions).
(233.) 22 U.S.C.A. [section] 7102(8) (2004) (defining the phrase "severe forms of trafficking").
(234.) See id.
(235.) DOS TIP Report 2005, supra note 52.
(236.) Id.
(237.) See Fei, supra note 83.
(238.) Sue generally Manley, supra note 67, at 627.
(239.) Smolin, Child Laundering., supra note 17, at 159 (describing an eight-year-old child adopted by Germans who, after learning some German, was able to tell her new parents that her mother was alive and had not relinquished her).
(240.) Black's Law Dictionary 264 (2d pocket ed. 2001).
(241.) Graff, supra note 5, at 410 (detailing the "shocking and abusive" practices of lawyer baby-brokers in Guatemala).
(242.) Smolin, Applying Anti-Trafficking Norms, supra note 220, at 15 (arguing the child is exploited when trafficked for adoption).
(243.) Id. at 11-18 (arguing that commodification transforms adoption into exploitation).
(244.) Id.
(245.) Id. at 14.
(246.) Id.
(247.) Smolin, Applying Anti-Trafficking Norms, supra note 220. at 14.
(248.) Id.
(249.) Id.
(250.) 22 U.S.C. [section] 7101(b)(3) (2001).
(251.) See Optional Protocol CRC, supra note 193; see also Hague Convention, supra note 123.
(252.) 22 U.S.C. [section] 7101(b)(4) (2001).
(253.) Smolin, Child Laundering, supra note 17, at 130 (stating "the commodification of children may already be endemic ... making it easier for the adoption system to be utilized for such purposes,").
(254.) Id. at 166 (citing U.N. Econ. & Soc. Council, Commission on Human Rights, Report of the. Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography 5-18, 56th Sess., U.N. Doc. E/CN.4/2000/73/Add.2/2000).
(255.) 22 U.S.C. [section] 7101(b)(4) (2001) (finding "women and girls are disproportionately affected by poverty, lack of access to education, unemployment, discrimination, and lack of economic opportunities."),
(256.) Graff, supra note 5, at 410 ("Pregnant women are targeted and coerced into giving up their newborns. These women are usually single, poor and uninformed about their legal rights.").
(257.) Id. (relating the "shocking and abusive" tactics baby brokers employ).
(258.) 22 U.S.C. [section] 7101(b)(4) (2006).
(259.) Id. [section] 7101(b)(8) ("Trafficking in persons is increasingly perpetrated by organized, sophisticated criminal enterprises.").
(260.) See Vittorio Hernandez, Guatemala Study Shows Baby Adoptions Controlled by a Criminal Ring, AHN, Nov. 22, 2007, http://www.feedsyndicate.com/articles/7009239458 (reporting findings of a Guatemalan government study); see also Adopted Guatemala Baby Stolen, BBC News, July 24, 2008, http://news.bbc.co.Uk/2/hi/americas/7522678.stm (reporting on the first confirmed case of an adopted child being stolen from her mother); China Halts Baby Trafficking Ring, BBC NEWS, July 13, 2004, http://news.bbc.co.uk/2/hi/asia-pacific/3890305.stm; Fei, supra note 82, among other news reports.
(261.) CHINA'S STOLEN CHILDREN, (True Vision North 2007) (documentary film includes footage of a trafficker talking about the growing demand for children to adopt).
(262.) 22 U.S.C. [section] 7101(b)(14) (2001).
(263.) Id. [section] 710l(b)(16).
(264.) Id. [section] 7101(b)(8).
(265.) Smolin, Child Laundering, supra note 17, at 194 (calling child laundering the "perfect crime" because weak and corruptible regulatory, judicial, and enforcement mechanisms in. sending countries allow criminals to traffic children with impunity).
(266.) Id.
(267.) See generally Smolin, Applying Anti-Trafficking Norms, supra note 220.
(268.) CRC, supra note 115; Hague Convention, supra note 122; 42 U.S.C, [section] 14901 (2001).
(269.) Optional Protocol CRC, supra note 193; Hague Convention, supra note 123.
(270.) 42 U.S.C. [section] 14944(c) (2001).
(271.) ld. [section] 14901(b)(2).
(272.) Optional Protocol CRC, supra note 193, at art. 3(l)(a)(ii).
(273.) Hague Convention, supra note 123, at art. 8.
(274.) 22 U.S.C. [section] 7108(2006).
(275.) Id. [section] 7107 (b)(23).
(276.) Id. [section] 7107(d).
(277.) Id.[section] 7109(a).
(278.) 42 U.S.C. [section] 14901(b)(2) (2001).
(279.) 22 U.S.C. [section] 7101 (2001).
(280.) Manley, supra note 67, at 657 (citing Stein, supra note 59, at 76 (pointing out that the Hague Convention fails to protect against black market adoptions by not requiring signatories to ban baby selling or punish baby traffickers)).
(281.) Id.
(282.) 42 U.S.C. [section] 14944(c) (2001).
(283.) Manley, supra note 67, at 657 (proposing that an amendment to the Hague Convention should specifically prohibit any and ail black-market practices).
(284.) 22 U.S.C. [section] 7102(8) (2000).
(285.) Id.
(286.) U.S. v. Brown, 381 U.S. 437 (1965).
(287.) 24 CJS Crimlaw [section] 1997.
(288.) See generally Smolin Applying Anti-Trafficking Norms, supra note 220.
(289.) 22 U.S.C. [section] 7102(8)(B) (2000).
(290.) DOS TIP Report 2005, supra note 52, at 21.
(291.) Smolin, Applying Anti-Trafficking Norms, supra note 220.
(292.) 22 U.S.C. [section] 7101 (2006).
(293.) Id. [section] 7102(8).
(294.) Id. [section][section] 7101-7109.
(295.) Id. [section] 7102(8).
(296.) Smolin, Child Laundering, supra note 17, at 144 (asserting that the orphan visa process "virtually invites attempts to launder children ...").
(297.) Ethica, Comments on Regs., supra note 223.
(298.) Smolin, Child Laundering, supra note 17, at 172 ("The United States government is ultimately responsible to ensure that the orphan visa process is not a child laundering process.").
(299.) See generally Chuang, supra note 11 (asserting the United States has taken on the role of global sheriff in human trafficking).
(300.) Smolin, Child Laundering, supra note 17, at 173 (arguing that without reform, intercountry adoption scandals will continue).
Patricia J. Meier *
* Patty Meier is a former journalist who expects to graduate from the University of Iowa College of Law in December 2008. She thanks Professor Mark Sidel and Professor David M. Smolin for their encouragement, and her family for their support and patience. This article is dedicated to Shu Shu, whose story inspired the work.