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Illegal Adoption As Child Trafficking

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Illegal Adoption As Child Trafficking Acknowledgments This thesis would not have been possible without the great support and inspiration I received from Ties, Marco, Lisa, Klaartje, Saartje, Caroline, Leo, Roelie, Arun and of course my supervisor Lia Versteegh. Iara de Witte, The Hague 2012 1 Table of contents Acknowledgments ..................................................................................................................... 1 Table of contents ....................................................................................................................... 2 Introduction .............................................................................................................................. 4 1 Intercountry adoption in accordance with international conventions ......................... 8 Introduction ......................................................................................................................... 8 1.1 United Nations Convention on the Rights of the Child ................................................. 8 1.2 European Convention for the Protection of Human Rights and Fundamental Freedoms ........................................................................................................................... 12 1.3 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ....................................................................................................... 15 Conflict between treaties?.................................................................................................................... 18 Conclusion ........................................................................................................................ 20 2 Illegal adoption ................................................................................................................ 22 Introduction ....................................................................................................................... 22 2.1 Definition of illegal intercountry adoption ................................................................. 22 2.2 Why illegal adoptions take place ................................................................................ 23 Market in children ............................................................................................................................... 24 Illegal adoption despite or because of regulation? ............................................................................... 29 2.3 Cases of illegal adoption ............................................................................................ 36 Case Betty ............................................................................................................................................ 36 Case Rahul ........................................................................................................................................... 38 Case Schröder ...................................................................................................................................... 40 Case adoption from Poland .................................................................................................................. 41 Case adoption procedures of Bulgaria, Poland, Ethiopia ..................................................................... 42 Case Dutch-American adoption procedure .......................................................................................... 43 Case child relinquishment in India ...................................................................................................... 44 Conclusion ........................................................................................................................ 45 3 Illegal adoption as child trafficking............................................................................... 47 Introduction ....................................................................................................................... 47 2 3.1 Trafficking in human beings for the purpose of exploitation ...................................... 48 International legal instruments against THB ....................................................................................... 48 Definition of THB ............................................................................................................................... 49 Illegal adoption as a form of THB ....................................................................................................... 50 Illegal adoption and the constitutive elements ..................................................................................... 51 3.2 Trafficking in human beings for any purpose ............................................................. 53 Abduction, sale and trafficking ............................................................................................................ 54 3.3 Adoption as exploitation ............................................................................................. 57 Conclusion ........................................................................................................................ 59 4 Illegal adoption and the EU Anti-trafficking Directive ............................................... 61 Introduction ....................................................................................................................... 61 4.1 Illegal adoption and the creation of the directive ....................................................... 62 4.2 Current action and interpretation ............................................................................... 67 Provisions of EU Member States ......................................................................................................... 68 Illegal adoption and the Commission’s approach ................................................................................ 71 Illegal adoption as THB and the Commission’s approach ................................................................... 75 Conclusion ........................................................................................................................ 77 Conclusion and recommendations ........................................................................................ 78 List of acronyms ..................................................................................................................... 82 Glossary ................................................................................................................................... 83 Bibliography ........................................................................................................................... 86 Annexes ................................................................................................................................... 95 3 Introduction Intercountry adoption (ICA) involves the transfer of a child from his or her country of origin to another country for adoption. It is perceived as a solution to provide a child, deprived from a family in the country of origin, with a family in another country.1 Conversely, ICA offers the opportunity for people who are unintentionally childless to fulfil their desire to found a family.2 From this perspective, it seems a good solution to both problems. However, at present some scholars note that ICA is driven by the desire of prospective adoptive parents instead of the best interest of the child, as the demand for children exceeds the availability. Then, it is argued that when the demand for children exceeds supply, the likelihood of illegal activity increases.3 In recent years, cases of abuses in the system of intercountry adoption have been frequently reported. It involves cases of children obtained for intercountry adoption through i.a. abduction; recruitment; coercing, misinforming, deceiving and inducing the biological parents; and falsification of birth certificates and relinquishment documents.4 It also involves 1 By some, it is therefore perceived as a child protection measure. For example, according to family law professor Paul Vlaardingerbroek, intercountry adoption contains a child protection motive. However, according to family law researcher Mr. Ad van der Linden, intercountry adoption is not a measure of child protection (since adoption is regulated by private law and not a government task). Source: Vlaardingerbroek, P., ‘Alternatieven voor (interlandelijke) adoptie’, in: M.P.C. Scheepmaker ed., ‘Adoptie onder vuur’, Justitiële Verkenningen, vol. 34, no. 7 (2008), p. 58.; - Van der Linden, A.P., ‘Adoptie in het kennelijk belang van het kind?’, in: M.P.C. Scheepmaker ed., ‘Adoptie onder vuur’, Justitiële Verkenningen, vol. 34, no. 7 (2008), p. 81. 2 Vlaardingerbroek, P., ‘Alternatieven voor (interlandelijke) adoptie’, p. 58.; It is estimated that about 95% of the prospective adoptive parents opt for ICA because of their desire to have a family. The remaining 5% is driven by the idea that a child in need can be rescued through ICA. Source: Van der Linden, A.P., ‘Adoptie in het kennelijk belang van het kind?’, p. 82. 3 Council of Europe Commissioner for Human Rights, Adoption and Children: A Human Rights Perspective, prepared by N. Cantwell, CommDH/IssuePaper(2011)2, Strasbourg, 28 April 2011.; - Parliamentary Assembly of the Council of Europe, International adoption: respecting children’s rights, Recommendation 1443 (2000), 26 January 2000.; - Selman, P., ‘Trends in Intercountry Adoption: Analysis
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