Thursday, March 17, 2011

Defining Terms When Discussing Corruption

I get frequent requests from adoptive families asking what the probability is that their child was trafficked. In the very next breath some of these families express confusion over what "trafficked" means with a follow-up question regarding their child's birth family searching for their child, and wanting her back. It soon becomes obvious that in many people's minds, trafficking and kidnapping are the same thing.

Global March defines child trafficking as "any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration". The definition continues that "it refers to the process that puts children in a situation of commercial exploitation." When it comes to China's adoption program, this is the definition that is intended.

When a birth family is paid by another family (say in their neighborhood) to arrange the informal adoption of a child, even if money is paid by the adopting family, this does not constitute trafficking since the adopting family is not using the child for commercial gain. Thus, payments of monies by adoptive families to birth families fall outside the traditional definition of trafficking as usually understood by adoption advocates. However, if money is paid to a birth family by a third party, with the intent that the child will then be transferred again for a higher sum of money, then the transaction is commercial in nature, and thus constitutes trafficking.

It does not matter if only one child is transferred, or dozens -- the criteria is the transfer of a child for money or other remuneration with the intent to transfer that child again for commercial gain.

Under this definition, many orphanages in China are involved in trafficking, since they are engaged in paying money to obtain children for adoption. These children are then transferred again to adoptive families for even larger sums of money, resulting in the transaction being for "commercial gain". But it is important to recognize that in a trafficking situation, the child is willingly relinquished.

Trafficking should be considered separate and distinct from "kidnapping", "stealing", etc. Under this situation, one party (usually the birth family) is an unwilling participant. There is no voluntary relinquishment of the child in a kidnapping case. Thus, while a child may be trafficked from the kidnapper to a third party, kidnapping (stealing) a child and then selling them (trafficking) to another party is a subset of the total "trafficking" pie. The terms "kidnapping" and "trafficking" cannot, and should not, be used interchangeably.

When we look at China's international adoption program, both of the scenarios described above can be seen, but in disproportionate numbers. We have seen cases of kidnapped children entering the orphanages. In those cases, the birth families involuntarily lost custody of their child as a result of that child being kidnapped. In a case from the Dianjiang orphanage, the birth family was able to regain custody of their daughter before the international adoption was completed; in a case from a Hunan orphanage, the Chinese Police discovered that a kidnapped girl had been internationally adopted.

Trafficking of children into the orphanages is much more common, forming the foundation of China's international adoption program. In the most common manifestation of this problem, birth families are offered money or other remuneration to willingly relinquish their child. The "finder" then brings the child to the orphanage, where they are paid a larger sum in a "finder's fee", resulting in a case of trafficking under the above definition. The orphanage then adopts the child for an even larger sum of money, again resulting in trafficking under the above definition. In many cases the birth family is deceived into conducting the transaction with false promises of where their child will end up or what their relationship with the child will be in the future.

From the evidence gathered from many, many orphanages involved in the international adoption program, it appears that "kidnapping" of children for sale to orphanage is much less frequent than the "trafficking" of children into the orphanages. The problem is, of course, that in most cases, the kidnapping is a result of the trafficking. In other words, by offering significant sums of money for individuals to "traffic" children to the orphanage, the orphanage also increases instances of "finders" obtaining the child through kidnapping. Without the payment of money for children, there would be little reason for someone to kidnap a child to bring to the orphanage.

It is, of course, extremely difficult to determine how many children that have been internationally adopted had been kidnapped. Intuitively, one would assume that kidnapped children would be older, since a kidnapper would need to find the child alone in order to take her, and newborn infants seldom are found in this situation. Certainly all of the known cases kidnapped children ending up in an orphanage have been older children. But a general lack of transparency inside China prevents all the cases from being discovered.

It is much easier to assess how common trafficking is. "On-the-ground" interviews with finders, orphanage workers, area doctors, etc. provide easy access to trafficking information because these programs are by nature very public and well-known. Additionally, trafficking orphanages display characteristics that betray their programs such as finding location "clusters", unusual demographic characteristics, etc. From this evidence it is clear that a substantial majority of orphanages are involved in child trafficking.

Adoptive families should speak and write clearly when it comes to these issues. The willing relinquishment of a child by her birth parents for money or other remuneration by an individual intending to engage in a commercial transaction with another party for that child constitutes trafficking. The taking of a child from unwilling birth parents constitutes kidnapping. The two terms cannot be used interchangeably.


Snowflowers Mum said...

right on Brian, I think that this clarifies a lot for people who been using 'trafficked' 'stolen' 'kidnapped' synonomously.
I have always understood that any area of humanitarian issues, whether it be orphaned or abondoned children, famine, natural disaster etc can be manipulated into a business. I also know that to truly understand this issue and it's dynamics one must not put it into an 'American' or 'Western' context as it will only bring further confusion. Only when you can remove the emotive factors and understand the history of the culture can you begin to process the information in a balanced way.
Namaste my friend, thanks for clarifying.

Anonymous said...

Brian, under Chinese law this would be the case however under Western legal definitions I do not see how a child that was bought from parents and sold to an orphanage for resale internationally for the purpose of adoption as being legally defined as trafficking if the child passed through both CCAA and receiving government.
I think this is where the root of confusion lies. Agencies, NGOs, APs, PAPs, courts, government authorities just do not view the willful sale of a child for the purpose of international adoption as trafficking. The term would more commonly be referred to as smuggling.
And I believe that the lack of true defining laws against trafficking for adoption is what allows it to continue to the level it has.

Research-China.Org said...

Article Four of the Hague Convention on Protection of Children clearly states:

"An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin-

"(c) have ensured that
"(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn"

Thus, the payment of monies or other remuneration for a child is in clear violation of the international agreement signed by China and the U.S. If anything, Chinese law is weak in this area, and Western law is clear.


Anonymous said...

Thanks, very good synopsis. I think the obvious crucial piece here is that the conditions that give rise to the trafficking, namely the fact that Chinese international adoptions generate significant revenue through the "donations" that are transacted between the adopting family and the orphanage, is what creates the context for kidnapping to occur, alongside that of trafficking.

Anonymous said...

Brian, you quote the Hague convention? Ha! Who enforces those "laws"? Which government actually has any ability to investigate or will enforce this bunk treaty!
Obviously I understand your point that what is happening is enough to prove these adoptions do not meet international regulations but beyond that point (which has been made for years) who is enforcing?
So there's clear evidence of trafficking. Does anyone really care?

Research-China.Org said...


Point well taken.


Anonymous said...


I love your posts but I have a problem with the following:

"When a birth family is paid by another family (say in their neighborhood) to arrange the informal adoption of a child, even if money is paid by the adopting family, this does not constitute trafficking since the adopting family is not using the child for commercial gain. Thus, payments of monies by adoptive families to birth families fall outside the traditional definition of trafficking as usually understood by adoption advocates."

To me, any time money is exchanged for a child, that is trafficking, whether there is a middle man making a profit or not. How do you know, down the road, that the adoptive family will not use the child for "commercial use"? The passing of money for the child contaminates all the "good will," in my mind. In anyone should be paying money, it is the birth family who should be paying the adoptive family as a token gesture for all the future costs of raising the child. To me, your example is still another example of trafficking.

Research-China.Org said...

I totally understand your reasoning. The definition is not mine. But I do see your concerns, and would tend to agree, although payments to birth mothers is common practice in the adoption community all over the world.


Anonymous said...

Yes! If payment for a child equals trafficking then the manditory orphanage "donation" would be another clear example of trafficking!
This is why we will never see a broad ruling that states that money paid for a child equates to trafficking. If this happened, most private and international adoptions would end.

kantmakm said...

Thanks, Brian. Very worthwhile post.

Mei Ling said...

You don't have to publish this comment as this post was from March and hardly anyone will see it except for stragglers (if that?), but yeah - the definition of "trafficking" here would have to apply to every single international adoption ever processed.

There's just no way to get around the concept of trafficking in adoption, seeing as biological parents tend to pay for costs to support their child, and not the COST to gain -a- child.

Still, it's an uneasy feeling.