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Buy buy baby?

For many in the developed world, excluded from their national adoption system for reasons such as age, inter-country adoption may be one option to start or expand their families.  On the surface this system, if well regulated, seems to offer a positive outcome for both children and prospective parents.  However, as with any system involving several national jurisdictions, the potential for fraud, corruption, and exploitation is ripe – the worst case scenario being the widespread kidnap and sale of children into adoption.  There have been numerous stories from Cambodia, India, Ethiopia and Guatemala of ‘orphans’ being  adopted by Western parents only for it later to emerge that they had living parents, in whose care they were happily living.  Parents coerced, bullied or mislead into giving up their children or, at the worst end of the spectrum, children being stolen.  Most recently, in April, two Malaysians were arrested  for allegedly selling babies to a Singaporean woman, who was operating as a middle (wo)man in the transaction.

Illegal adoption is not new.  The 20th century saw a number of states use forced/illegal adoption during periods of conflict or instability.  Usually politically motivated, this process found its justification in a faux moral argument which centred on the provision of a better life for a child, regardless of the potential trauma suffered by the birth family, the deceit suffered by the prospective parents or indeed the mental distress suffered by the child.  In Spain, for instance, as recently explored in a BBC documentary, children were literally stolen from their mothers (who were told the baby had died) by the Catholic Church and given to more ‘suitable’ families under the auspices of the Franco era (beginning 1939) until the 1990s.  Similarly, in Argentina, during the military dictatorship (1976-83) children were taken from women in prison or kidnapped when their parents were arrested and adopted by military families.  Thankfully state sponsored forced adoptions are far less of a contemporary issue.  Instead, the last 20 years have seen the rise in independent organisations that for commercial, moral, religious or other reasons have conspired and succeeded in effectively selling babies for both national and international adoption.

Is the kidnap and transport of babies for the purposes of adoption considered trafficking?  In the recent Malaysian story mentioned above, the suspects were arrested under Section 14 of the Anti-trafficking in Persons and Anti-Smuggling of Immigrants Act. Likewise, the perpetrators in the Hunan baby scandal, in which children from Hunan province in China were being purchased by an orphanage for ‘re-sale’ to adoptive parents in the United States, were convicted under relevant trafficking laws.  According to Dottridge and Jordan, the original decision not to include adoption within Palermo was deliberate; the result of the absence of exploitation and the fact that, as noted below, adoption is covered by other treaties.

If the goal of trafficking is exploitation, it is not clear how, in the framework of illegal or forced adoption, the child is being exploited beyond his/her ‘purchase’; i.e. an adopted child is not usually used for labour or sexual exploitation. (It should be noted that the trafficking of children for labour and sexual exploitation is a very real issue, particularly in South East Asia, however, this is not usually carried out under the auspices of adoption.)  However, should a situation in which a child finds him/herself as a result of an adoption be considered similar to slavery, the Palermo Protocol would apply to that situation.  For instance, a situation in which a child is adopted and then forced into unpaid domestic servitude.

However, a UNICEF report examining the trafficking of children in East and South East Asia (2009) includes the illegal adoption of babies and children as a form of trafficking.  The emphasis in this report is on interpretation of the Palermo Protocol and the acknowledgement that states can expand on the Palermo Protocol to include the issues around the exploitation of the inter-country adoption process.

Inter-country adoption is addressed in international law, in particular the UN Convention on the Rights of the Child (CRC) and the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Convention).  In reference to adoption, the CRC’s focus on the ‘best interests of the child’  promotes the idea that inter-country adoption should only be considered if a child cannot be cared for in the child’s country of origin.  A similar emphasis is found in the Hague Convention.  Of most relevance to the discussion here is the Optional Protocol Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, which contains specific provisions on adoption.  Article 3 (1)(c) (ii) requires states to put in place measures which criminalise: ‘Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption’ and Article 3 (5) ‘States Parties shall take all appropriate legal and administrative measures to ensure that all persons involved in the adoption of a child act in conformity with applicable international legal instruments’.  However, as with all human rights treaties, they are only as effective as their enforcement mechanisms; for poorer countries, enforcement may be limited.  International treaties also need to be supported by robust national laws and a criminal justice system capable and willing to engage with the issue.  Significantly, even in states with the economic resources to effectively implement such treaties, this may not be a priority or be the subject of gradual, rather than immediate realisation.

Is this an issue in Singapore?  Singapore has ratified the CRC, though the government appears reluctant to engage with its international commitment, considering the number of reservations and declarations it holds to this treaty.  The Adoption of Children Act 1972 governs this area in Singapore, but this legislation was criticised by the UN Committee on the Rights of Child during its assessment of Singapore’s compliance with its treaty obligations.  The Committee’s concerns focused on the lack of safeguards for children’s rights and ‘reported cases of sale of children for adoption’.  Another area which needs to be considered is the particular inter-familial, cross border adoptions which may occur between extended families in Singapore and Malaysia and may not be the subject of formalised official agreements. Loopholes, in all their forms, with regard to inter-country adoption, need to be closed to ensure  the safe passage of children from country of origin to adoption in Singapore.  To give an idea of the size of inter-country adoption in Singapore, a 2002 report by the UN found that 63% of all adoptions were of children from outside Singapore, primarily from Malaysia.

As Singapore develops its legislative response to trafficking, it is currently unclear if this will include the potential exploitation of inter-country adoption.  There is scope for attention to be paid to this issue.  Broadly, it points to a specific situation in which Singapore does not have to solely rely on direct implementation of  Palermo Protocol into national legislation; Palermo Protocol represents the minimum standard which should be adopted. Instead the state can use Palermo as guidance and enhance its provisions; in this case to provide protections for babies and children adopted from outside Singapore.  There are gaps in national legislative framework in Singapore relating to adoption, and in the ratification and enforcement of international treaties.  Singapore has the potential to lead the way in the debate on trafficking and forced adoption, an area that is under-researched and seemingly under-valued.

This post is very much a brief overview of the legal framework relating to trafficking and forced/exploitative/illegal adoption.  We welcome comments from those with greater experience of this area and discussion on other under-researched areas.

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