Child Laundering The world Of Stealing our children.

Published On September 16, 2019 | By Children Screaming To Be Heard |

 INTRODUCTION

Full Article Here 

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.693.3159&rep=rep1&type=pdf


The term “child laundering” expresses the claim that the current
intercountry adoption system frequently takes children illegally from birth
parents, and then uses the official processes of the adoption and legal
systems to “launder” them as “legally” adopted children. Thus, the adoption
system treats children in a manner analogous to a criminal organization
engaged in money laundering, which obtains funds illegally but then
“launders” them through a legitimate business.

1
The article title further claims that the adoption system both legitimizes
and incentivizes stealing, kidnaping, trafficking, and buying children. The
title does not claim that the adoption system explicitly authorizes these
pernicious practices, but rather claims that the adoption and legal systems
create incentives to engage in these destructive practices. In addition, the
legal rules and processes associated with adoption are clearly inadequate to
prevent these illicit practices from becoming a significant part of the
intercountry adoption system. Indeed, the legal rules of the adoption system
are systematically used to “launder” or legitimize these practices, by
processing as “orphans,” and then adoptees, infants and children who were
stolen, bought, or kidnaped from their birth families.
The claims made by this article are necessarily difficult to establish,
given the nature of the conduct in question. Those who traffic, buy, or steal
children for processing through the adoption system do not advertise their
illicit activities. Moreover, most within the adoption system, including
adoption agencies, adoptive parents, and sometimes even adoptees, have
motivations for minimizing or ignoring evidence of such conduct.
Nonetheless, child laundering within the intercountry adoption system is
becoming increasingly apparent, and the patterns are clear for those with
eyes willing to see. Hence, this article will seek to demonstrate, through
evidence, analysis, and the citation of a wide variety of sources, the
widespread existence of child laundering.


The implications of child laundering for the intercountry adoption
system are grave. Other forms of corruption within the intercountry
adoption system, such as bribery of government officials to facilitate the
speedy adoption of a true orphan or extra payoffs to an orphanage to secure a ready supply of orphans, could be viewed by some as necessary or
peripheral evils toward a greater good. The good of providing orphans with
families could be viewed as justifying a broad variety of otherwise


116 THE WAYNE LAW REVIEW [Vol. 52:113
2. See, e.g., Elizabeth Bartholet, International Adoption: Current Status and Future  Prospects, 3 THE FUTURE OF CHILDREN 89, 96 (1993) (stating “[there is] no evidence that  these practices are widespread, and it is quite unlikely that they are.”). See also, Sara  Corbett, Baby Laundering: Where Do Babies Come From?, N.Y.TIMES, June 16, 2002

https://www.nytimes.com/2002/06/16/magazine/where-do-babies-come-from.html
(quoting a prospective adoptive parent regarding the Cambodian adoption scandal: “The government’s holding up my adoption because maybe somebody gave the birth mother $25?” and noting denial of widespread abuse by adoptive parents and adoption agencies).
3. Cf. Intercountry Adoption, INNOCENTI DIGEST 4, 1999, at 6: “During the adoption process, violations of the most basic rights of the child can occur. These violations are often perpetrated underthe cover of the supposedly humanitarian aimof the act and ‘justified’ by  the simplistic view that a child will somehow always be ‘better off’ in a materially rich country.” Id. questionable acts. However, child laundering needlessly and illicitly makes children in intact families into paper orphans, by using illegal means to separate them from their families. In such cases there is no countervailing good to justify the egregious harm of breaking the original child-birth family relationship. Child laundering reduces the humanitarian rationale for  intercountry adoption into a cruel façade or pretext. Stripped of all  humanitarian justification, intercountry adoption is a commercialized and corrupt system driven by the demand of rich Western adults for children.
Thus, if child laundering is present to a significant degree within the
intercountry adoption system, as this article claims, then the ethical and
legal legitimacy of intercountry adoption is threatened.


There are several possible responses to this threat. A common response
is to ignore or minimize the incidence of child buying, kidnaping, and
trafficking within the intercountry adoption system.2 Others may concede
the existence of the problem, yet view even a large amount of child
laundering within the intercountry adoption system as unfortunate
“collateral damage” which mars but does not undermine the system’s
humanitarian results. Thus, if at least the majority of international adoptees
were “true orphans,” then some might justify the system even where a
substantial minority were not; the system would produce more good than
harm. Some might go so far as to argue that even the laundered children are  “better off” living in the affluent West, apart from the economic,
educational, cultural, and gender limitations that would have hindered their  development in their families of origin.3 This “better off” argument is
usually not urged in public, as it lies perilously close to controversial
notions of cultural or national superiority. In private conversations within
and outside the adoption world, however, it is repeatedly whispered, and
perhaps accounts for a certain lack of urgency in responding to the problem.


This article argues that all of these responses to the “threat” of child
laundering in the intercountry adoption system amount to either
2006] CHILD LAUNDERING 117  unproductive hiding of heads in the sand, or unnecessary and counterproductive rationalization of illicit conduct. The point is neither to  justify nor excuse the intercountry adoption system as it is, but to reform it.
There is no need to make a tragic choice between shutting down or
continuing a flawed system, at least not until serious efforts have been made  to reform the system. A family living in a filthy house does not face a
“tragic” choice between homelessness or substandard housing, but rather
faces the practical necessity of a clean-up. In the same way, it is time to
“clean up” the intercountry adoption system.


Part II of the article documents and describes a significant incidence of
child laundering within the intercountry adoption system. Part III evaluates
those features of the adoption system which contribute to the incidence of
such illicit practices, and then proposes reforms which could make the
intercountry adoption system less hospitable to child laundering.
II. THE INCIDENCE OF CHILD BUYING, STEALING, KIDNAPING, AND
TRAFFICKING WITHIN THE INTERCOUNTRY ADOPTION SYSTEM
There is, of course, no way to precisely measure the incidence of illicit
child buying, stealing, kidnaping, and trafficking within the current
intercountry adoption system. Indeed, given the premise of this article—that  this illicit conduct is “laundered” into legitimate adoptions—it is necessarily  impossible to present official statistics of its incidence. 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. These abuses of the adoption system could not last long if they were not usually hidden; these crimes would not exist if they were not  usually successful in achieving the aims of their perpetrators.
Nonetheless, this section will cite a wide variety of sources to
substantiate a significant incidence of such abusive practices. The point,
however, is not merely to document individual instances of such practices,
but more broadly to understand patterns of abusive practice. From these
patterns, the nature and causes of the abuse, and the weaknesses in our legal and adoption systems which permit them, will become clearer.
Thus, this section overviews the methods of operation, the role of
poverty, and the cycles of abuse, before specifically documenting a number
of instances of abusive adoption practices.


A. Methods of Operation 
Child laundering does not occur in a random way, but generally reflects
118 THE WAYNE LAW REVIEW [Vol. 52:113
4. See, e.g., David M. Smolin, The Two Faces of Intercountry Adoption: The
Significance of the Indian Adoption Scandals, 35 Seton Hall L. Rev. 403, 451 (2005).
5. For a popularized but helpful overview of the situation of those living in extreme
poverty, see Jeffrey D. Sachs, The End of Poverty (2005).
6. See, e.g., Operation Broken Hearts, infra note 15.
7. See Smolin, supra note 4, at 449-50.
8. See, e.g., Smolin, supra note 4, at 450-74 (2005). See, for example, Ethan B.
Kapstein, The Baby Trade, FOREIGN AFF., Nov./Dec. 2003, for general comments on the problem of baby-buying in intercountry adoption.
distinctive methods of criminal activity. The following are the typical
methods of operation. Often real cases are in fact combinations of these
various illicit methods:


1. Child Buying Scenario I
Citizens of sending countries, including independent facilitators,
attorneys, orphanage directors, and others, create a system for purchasing
infants and children from birth families. These systems usually involve
persons at the head of the conspiracy who possess the language and literacy
skills, and the financial and social position, to interact with first-world
adoption agencies and prospective adoptive parents. These persons usually
send out intermediaries, generally of a lower social station, to serve as
scouts or recruiters.

4
The targets of this recruiting are generally the poor of
poor societies, who earn less than one dollar per day.5 By Western
standards, the amounts the scouts offer to poor parents often seem tragically small, which underscores the desperate financial circumstances of the birth
parents. Often, the inducements are as much false statements as money. The
parents may be told that they will be able to stay in touch with their
children, receive continuing payments and letters from the adoptive parents, or immigrate to a first-world nation.

6
The person at the top of this criminal
conspiracy may receive $2,000 to $20,000 for each child who is placed for
adoption overseas, with funds coming from purportedly legitimate adoption fees and “orphanage donations.”7 Out of these funds, there are ample amounts to pay intermediaries (recruiters), the birth family, bribes of
government officials (if necessary), as well as pay the legitimate costs of
child care and intercountry adoption, while still making a large profit. The
profits are particularly attractive given that these schemes generally occur
in societies with a per capita annual income of less than $800, where even
an educated, “middle class” individual may earn less than $10,000
annually.

8
Significantly, in these instances the placement agencies in recipient
countries (such as the United States, Canada, and Europe) are generally
2006] CHILD LAUNDERING 119
9. See, e.g., Smolin, supra note 8. See also, International Adoption: Respecting Children’s Rights, Report of Social, Health and Family Affairs Committee, Council of  Europe, Doc. 8592 (Dec. 2, 1999), available at http://assembly.coe.int/Documents/
WorkingDocs/doc99/EDOC8592.htm(last visited Oct.2, 2006) (including a quotefrom Mr. : “although by no means all adoptions are commercial transactions that ride  roughshod over children’srights, there is—as pointed out by the International SocialService in Geneva—a trend in that direction because many of the associations and well-meaning
individuals that operate alongside the criminals, mafia elements and other middlemen are dangerously incompetent.”).
10. See infra notes 69-121 and accompanying text (describing Cambodian adoption scandal and related criminal prosecution).
11. See, e.g., Claudio Fonseca, Patterns of Shared Parenthood among the Brazilian  legitimate, licensed agencies who do not intentionally participate in illicit  activities, even as they facilitate the contacts, flow of funds, and legal  undertakings that make them possible.

9
2. Child Buying Scenario II
Sometimes the kind of child buying scheme described above will
include citizens of the recipient nation, such as the United States, who
intentionally facilitate child buying or other illicit conduct. In these
instances, a citizen of the recipient nation operates within the sending nationas the head of a criminal conspiracy, and is directly involved in hiring recruiters, bribing government officials, and other illicit conduct. As a practical matter, this scenario, although apparently much rarer, is more
likely to lead to criminal prosecution, because the recipient nation may be
more willing to investigate criminal acts by their own citizens.

10
3. Child Stealing/Kidnaping Scenario I: Kidnaping Children Placed
into Orphanages, Hostels, or Schools for Purposes of Education or Care
The child stealing/kidnaping schemes in certain respects have a similar
structure to those involved in child buying, in that they involve corrupt
individuals obtaining children in illicit ways for purposes of adoption. As
in the child buying schemes, the motivation is primarily financial.


These schemes build upon the fact, often not widely understood in
recipient countries, that some sending nations have a custom, particularly
among the poor, of placing children in institutions for purposes of
education, food, housing, and care, without intending to sever parental
rights. These institutions, whether called orphanages, schools, or hostels,
are commonly used by the poor as a kind of safety net or extended family
resource.

11 The existence of this custom makes it relatively easy for
120 THE WAYNE LAW REVIEW [Vol. 52:113
Poor, 21 SOC. TEXT 74, at 111, 113-15 (2003); Asha Krishnakumar, The Adoption Market,
22 FRONTLINE, at 9, available at http://www.flonnet.com/fl2211/stories/
20050603006700400.htm (last visited Oct. 2, 2006) (reporting that at model orphanage in  India most children were not free for adoption and had a family member with whom they
maintained a bond).
12. See, e.g, Fonseca, supra note 11.
13. See, e.g, Operation Broken Hearts, infra note 15.

https://www.justice.gov/opa/pr/nearly-1700-suspected-child-sex-predators-arrested-during-operation-broken-heart
14. See, e.g, S. Munari, An Adoption Racket in Chennai Backfires on Parents, DECCAN
HERALD, May 15, 2005.
15. See U.S. Immigration and Customs Enforcement, Backgrounder, Operation Broken Hearts (2004) [hereinafter Operation Broken Hearts] (describing a criminal investigation into a Cambodian adoption scandal involving baby buyers who persuaded birth families to  give up their children using false statements that the families “could have their child back at any time,” and could “visit [their] child at the orphanage” and the child would receive food, medical care, and an education). See also, Murari, supra note 14 (investigating an agency in Tamil Nadu, India involved in intercountry adoption scandal that had attempted to place a child for adoption who had not been surrendered for adoption); Fonseca, supra
note11, at 114 (describinga poor Brazilian family who regularly relied on an orphanage for  temporary care of their children and were surprised when the youngest, a “fairly lightskinned, healthy infant,” had been put up for adoption); Mary Ellen Fieweger, Stolen Children and International Adoptions, 70 CHILD WELFARE (1991) (providing evidence that
suggests a child left in temporary care of orphanage in Ecuador was given false death certificate and then put up for international adoption); Kiran Bhandara, The Business of Foster Children, SAMAY NAT’L WKLY ., August 27, 2004 (describing how a widow and mother of seven in Nepal fights for return of three children she placed in orphanage for care,
where children were sent to Spain for adoption without her consent).
facilitators and scouts to persuade poor birth parents to place children into
institutions, for the parents do not understand themselves to be severing
their parental rights or ties.12
Sometimes, the child laundering scheme includes deliberately recruiting
children into the institution based on false pretenses.13 In other instances the family, on its own initiative, places a child into the institution for temporary care or education, and then the child is laundered through the adoption system as an “orphan,” and then adoptee. 14 However it is done, from the parents’ point of view the child has been kidnaped or stolen, as consent was never given for relinquishment or adoption, let alone adoption in another country. Nor were these children abandoned, for the parents intended to maintain family ties, even if the child spends a substantial amount of their childhood living in these institutions.15
By way of analogy, imagine the reaction of a Western parent who
placed a child in boarding school, only to discover that the school had
placed the child for adoption in a foreign country. Such an act would clearly
constitute a form of kidnaping or child stealing, because the school had no
authorization to sever family ties or place the child into another family and
nation.
2006] CHILD LAUNDERING 121
16. See, e.g, Operation Broken Hearts, supra note 15.
17. See, e.g, Smolin, supra note 4.
18. See, e.g., Operation Broken Hearts, supra note 15 (describing a method of  operation used by criminal conspiracy in Cambodia to obtain children); Intercountry
Adoption, supra note 3, at 6; Fieweger, supra note 15.
19. See, Smolin, supra note 4, at 460-61 (citing Syed Amin Jafri, Missing Girl Among Children Rescued in Tandur (May 1, 2001), available at http://www.rediff.com/news/
2001/may/01ap1.htm (last visited Oct. 2, 2006); Syed Amin Jafri, Adoption Home
Tampered with Children’s Records (May 2, 2001), available at
http://www.rediff.com/news/2001/may/02jafrihtm;AmbujamAnantharaman, BigRacket of Small Babies, T HE RISING NEPAL (July 27, 2005), available at
http://www.gorkhapatra.org.np/pageloader.php?file=2005/07/20/editorial/editorial1 (last
visited Oct. 2, 2006).
4. Child Stealing/Kidnaping Scenario II: Obtaining Children Through
False Pretenses
Closely related to the above scenario involving orphanages is the use
of false statements to induce parents to give their children to various
intermediaries. Thus, birth families may be told that their children are only
going away for an education, or for a better life, or temporarily. Birth
families may be promised that they will receive updates about or from their
children, support payments from adoptive families, or the right to immigrate to the recipient nation after their child grows up.16 In all these ways, the birth parents are led to believe that they are not really giving up their parental connection to their child, but are merely providing for a better life for their child and perhaps themselves. These false statements are used as inducements to gain physical custody of children. Subsequently, the children are laundered through the adoption system, often by falsifying the identities and histories of the children.17 Particularly if the children are too young to know and remember their own histories, this laundering is likely o be effective. The parents generally will never see or hear from their
children again, and will not receive any of the promised financial or legal
benefits.18
5. Child Stealing/Kidnaping Children Scenario III: Lost Children
There are reports of “lost” or “missing” children being prepared or
placed for adoption.19 Of course not all instances of “lost” children involve
child stealing or kidnaping. If a child is accidentally lost or separated from
their family, and the authorities and orphanages make reasonable efforts to
find the family but fail, then it may at some point be appropriate to pursue
a placement. Moreover, from the perspective of the authorities or
122 THE WAYNE LAW REVIEW [Vol. 52:113
20. See, e.g, Smolin, supra note 4, at 460-61..
21. See id. Some of the missingchildren cases unfortunately seem to involve intentional
kidnaping, rather than merely lost children.
22. See, e.g., Krishnakumar, infra note 23.
23. See, e.g., Asha Krishnakumar, Behind theFacade, 22 FRONTLINE (May 22, 2005),
available at http://www.frontlineonnet.com/fl2211/index.htm (last visited Oct. 2, 2006)
(documenting an organized scheme to kidnap children and sell them to adoption agencies
in Tamil Nadu, India); Intercountry Adoption, supra note 3 (documenting abuses of
intercountry adoption includingkidnaping); Kapstein, supra note 8 (noting the problem of
abductions as amethodofsourcingchildren for intercountry adoption); Fieweger,supra note
15 (documenting an international adoption ring in Ecuador that paid women to kidnap
orphanage, it may be difficult to distinguish between accidentally “lost”
children and deliberately abandoned children, absent some evidence which
points in one direction or another. It is understandable that after sufficient
efforts are made to find the family, plans are made to place the child for
adoption.
Unfortunately, however, the existence of an adoption system sometimes
provides an incentive to, in essence, kidnap a lost or missing child. Thus,
in some cases of lost children it appears that no efforts are made to find the   family, and indeed the child may be given a deliberately false history and name.20 The orphanage may be induced by financial considerations to relabel a lost child into an “orphan” eligible for adoption. Instead of seeking to restore that which is lost, the adoption system illicitly and purposely makes the unwitting separation of parent and child permanent.21 Under
these circumstances, the orphanage is really a kidnapper, because it is
abusing the unfortunate situation of a lost child to make a financially
lucrative international adoption.


Within this category lurks a legal issue: how much effort is required
when an infant or child is “found” by public or private authorities? It is
clearly illicit to alter the known history of the child in order to facilitate the adoption. Is it permissible, however, to simply make no effort to find the  family? If not, what degree of effort is reasonable, particularly in societies where many parents are illiterate?


6. Child Stealing/Kidnaping Scenario IV: Traditional Kidnaping
There are reports of children being kidnaped from hospitals, streets, and
homes, for the specific purpose of sale to an orphanage and/or profit from an adoptive placement.22 The orphanage may or may not be directly involved in the kidnaping. Even if the orphanage is not directly involved in the kidnaping, the kidnaping itself would only happen if someone (such as the orphanage) was willing to pay for a child.23 Of course these cases 2006] CHILD LAUNDERING 123
children of vendors who took their children to work with them).
24. See, e.g, Krishnakumar, supra note 23, at 5.
25. See, e.g., Gita Ramaswamy & Bhangya Bhukya, The Lambadas:

A Community Besieged 10-12, 23-30 (2001)(on file with author).
26. One of the best publicized cases of this kind concerns a Korean adoptee, Sunny Jo,  whose story is told in a variety of places. See, e.g., After the MorningCalm:Reflections of  Korean Adoptees (ed. Dr. Sook Wilkinson & Nancy Fox); Welcome to Sunny’s World,
available at www.geocities.com/sunny_jo888 (last visited Oct. 2, 2006); Jane Cooper,  Coming ofAge, available at http://www.seoulclassified.co.kr/comingofage.htm (last visited
Oct.2, 2006); Sunny Jo, From Morning Calm to Midnight Sun. A heart-breakingIndian case
where the husband and his mother sold an infant over the  trenuousresistance of the mother is described in Gita Ramaswamy & Bhangya Bhukya, The Lambadas 10-11 (2001).
involve no ransom demand, as the intent is to receive money from someone other than the birth family. Poor birth parents in developing nations are not in a financial position to outbid Western adoptive parents, even for their own children.
7. Child Stealing/Kidnaping Scenario V: Intra-Familial Kidnaping
Particularly complex are those cases in which extended or immediate
family members remove a child from the parent(s). The child may be taken to a distant location and abandoned, or brought to an orphanage. Often there are financial motivations involved, as family members wish to avoid the burden involved in raising the child.24 Sometimes the burden involved is culturally connected to gender, as in South Asian situations where the family dreads having to pay the costs of marrying off a daughter.25
Sometimes one parent is involved in the plot to abandon a child, against the of the other parent. Often, the parent who wishes to keep the child
is, in cultural terms, virtually powerless to withstand the wishes of the other or extended family members.26
Although debatable, it seems legally accurate to describe most of these
cases as a kind of kidnaping, for a parent is by force and/or trickery
deprived of their child. Moreover, despite the cultural difficulties, the
family members removing the child often lack the legal authority to remove abandon the child, particularly against the wishes of a parent who wants keep the child.
These intra-family cases create difficulties for the adoption system.
Even a diligent and well-intentioned adoption system could inadvertently http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.693.3159&rep=rep1&type=pdf
process as an “orphan” a child who has in this manner been taken from a
parent. In some of these instances, the adoption system may be relatively
faultless; in others, the credulity and lack of diligence of the adoption
system may play a role in facilitating the permanent and tragic taking of a
124 THE WAYNE LAW REVIEW [Vol. 52:113
27. See Vinod Kumar Menon, infra note 28.
28. See, e.g.,Vinod Kumar Menon, Doctors Take Away Baby from Mother, MIDDAY
NEWS, July 26, 2004 (describing a mother and child’s rights organization in India
complaining that doctors took a newborn from a mother and placed it up for adoption due  to her inability to pay caesarean birth costs); K. Venkateshwarlu, Longing For a Hug, THE
HINDU, April 23, 2004 (available from author).
29. Although it has not been covered by the Western press, the author is aware of a case  fromAndhraPradesh,Indiawherea petty-money lenderindebted parents, andthenproposed
that they place children in an orphanage later implicated in a major Indian intercountry  adoption scandal. The lender apparently told the parents that the children were only going
to the hostel for temporary care.

The money lender was allegedly receiving payments from
the orphanage to obtain the children.
child from a loving parent.
8. Child Stealing/Kidnaping Scenario VI: “Your Money or Your Baby:”
Taking Children in Payment of a Debt
There are reports of women being forced to give up their baby because
they were unable to pay off a debt.27 Some involve a woman unable to pay the costs of childbirth.28 Others involve money-lenders indebting a
vulnerable woman, and then in some manner proposing or demanding the placement of a child in the orphanage.29
The motivating impetus for these cases, as in the other kinds of cases,
is the availability of thousands of dollars of adoption fees which will remain  within the sending nation. These funds are more than sufficient to make it  worthwhile for intermediaries or orphanages to demand a child in lieu of a debt, or even to deliberately entrap a woman into debt in order to obtain a child.


Even if the debt is legitimate, obtaining a child in this manner is of
course illegal and amounts to kidnaping. Unfortunately, the relative
powerlessness of poor families and women in many societies makes it
difficult for them to obtain redress in such cases. In some cases they may
receive assistance in getting their child back before the adoption is
completed; otherwise, they will lose their child. In either case, charges are to stick, even with police investigation, due to the capacity of
wealthier elements in many societies to ultimately escape criminal
conviction, particularly for acts committed against the poor.
B. Extreme Poverty and Sending Nations
Significant sending nations may be divided into various groups. One
group of nations is generally free of child buying, kidnaping, and
2006] CHILD LAUNDERING 125
30. See Nili Luo & David M. Smolin, Intercountry Adoption and China: Emerging and Developing Chinese Perspectives, 35 CUMB. L.REV. 597 (2005) (regarding
China as a sending nation). See also KAY ANN JOHNSON,WANTING A DAUGHTER, NEEDING
A SON (2004); LAURA A. CECERE, THE CHILDREN CAN’T WAIT (3d ed. 2001). Press reports
concerning a child trafficking scandal include Peter S. Goodman, Stealing Babies for , March 12, 2006, at A01, available at http://www.washingtonpost.com/wpdyn/congtent/article/2006/03/01;China’s great baby sell-off, The Sunday Telegraph, March
12, 2006, available at  ://www.sundaytelegraph.news.com.au/print/0,9362,18429861-
28779,00.html. For an overview of Korean adoption which lacks the warnings about children or document fraud found in other nations, see International Adoption
SouthKorea,availableathttp://travel.state.gov/family/adoption//country/country-410.html  visited Oct. 2, 2006). The relatively positive reputation of the Chinese and Korean
adoption system does not, of course, mean that their adoption systems operate perfectly.
Moreover, there remain significant issues concerninginter-racial and cross-cultural adoption
which are beyond the scope of this article.
31. Regarding Vietnam, see, for example, International Adoption Vietnam, available
at http://travel.state.gov/adoption_vietnam.html (warning of documented instances of to birth mothers to induce them to give up a child,” and stating that “Document
fraud is widespread in Vietnam”). Vietnam Tightens Adoption Controls, GUARDIAN UNLIMITED, July 22, 2002; Kit R. Roane, Pitfalls for Parents, U.S. NEWS, June 06, 2005,
at 56 (discussing case involving a facilitator labeled a child trafficker by the Vietnamese government). An agreement signed in July 2005 is re-opening adoption between Vietnam
and the United States after more than two years of closure. See U.S. Department of State,
U.S. and the Socialist Republic of Vietnam Reach Agreement on International Adoptions
(June 14, 2005), available at http://www.travel.state.gov/family/adoption/notices/
notices_2542.html?css=print (last visited Oct. 2, 2006); Susan Soon-keum Cox, Vietnam
Adoption Re-Opens, available at http://www.rainbowkinds.com/2005/07/news/Vietnam_
adoption.chtml. The closure had been due to concerns with illegal baby-selling. Jeff D.
Opdyke, Adoption’s New Geography, WALL ST.J., Oct. 14, 2003, at D1. Cambodia, India,
and Guatemala are discussed extensively in Part II(D), infra.
32. See, e.g., David Filipov, Russia’s abused chldren suffering grim neglect, Boston
Globe, January 2, 1999, at A1.
33. See, e.g., David Ryan, Napa adoption firm closes under fire, January 7, 2006,
available at http://www.napavalleyregister.com/articles/2006/01/07/news/local/iq_
3238658.prt.; Madelyn Freundlich, The Market Forces in Adoption 49 (2000) (last visited
Oct. 2, 2006).
trafficking, while a contrasting group of sending nations is mired in
recurrent child laundering and profiteering scandals. Thus, China and South  Korea have generally positive reputations, although recent reports of child trafficking in China have raised concerns.30 Cambodia, India, Guatemala,
and Vietnam have suffered from significant adoption scandals involving
child laundering.31
A third group of nations, particularly including Russia, rarely suffer
from child laundering, as their “orphans” are legitimately eligible for
adoption.32 However, the adoption process in these nations is sometimes
subject to corruption, profiteering, or bribery.33
In addition, due to the
existence of large numbers of children receiving very poor institutional
126 THE WAYNE LAW REVIEW [Vol. 52:113
34. See Peter Selman, The Movement of Children for Intercountry Adoption: A
Demographic Perspective, Presentation at IUSSP General Population Conference, Aug. 18-
24, 2001, at 17.
35. See, e.g., Eric Peterson, Knowledge Fuels Successful Adoptions, CHI. DAILY
HERALD, Nov. 15, 2004, at 1; Miriam Horn, ADead Child, a Troubling Defense, U.S.NEWS
&WORLD REP., July 14, 1997; New Adoption Death Alarms Russia, BBC NEWS (July 12,
2005), available at http://news.bbc.co.uk/2/hi/europe/4676513.stm (last visited Oct. 2,
2006).
36. On the problem of extreme or absolute poverty, includingplansto alleviateit, see,
for example, JEFFREY D. SACHS, THE END OF POVERTY (2005); Jeffrey D. Sachs, Can
Extreme Poverty Be Eliminated?, SCIENTIFIC AMERICAN, Sept. 2005, at 56-65. On issues
related to the measurement of extreme poverty,see ShaohuaChen & Martin Ravallion, How
Have the World’s Poorest Fared Since the Early 1980s? This article will not try to address
the various methods of measuringextreme poverty,or the question of whether the$1per day
line should reference Purchasing Power Parity (PPP) estimates, or nominal dollars, nor the
question of how to account for inflation. See id.
37. See U.S.DEP’T.OFSTATE,BUREAU OF CONSULAR AFFAIRS, Immigrant VisasIssued
to Orphans Coming to the U.S., available at http://travel.state.gov/family/adoption/stats/
stats_451.htm (last visited Oct. 2, 2006).[hereinafter STATE DEP’T ADOPTION
STATISTICS](providing statistics for significant sending countries).
care, and a large incidence of fetal alcohol syndrome, issues related to the
undisclosed condition of children play a particularly prominent role.34 There
has been a disturbing incidence of Russian adoptees killed by their adoptive
parents within the United States, which seems to be related to the placement
of deeply disturbed children who are victims of substandard institutional
care to adoptive homes that are neither prepared nor able to deal with their
special needs.35
While this simplistic division of significant sending nations does not
account for all situations, it does point toward the factors that correlate with
child laundering. Thus, by comparing the characteristics of the various
groups of sending nations, it is possible to identify the factors which
correlate with child laundering. It turns out that two factors characterize
sending nations with significant child laundering difficulties:
(1) A large proportion of the population lives in or near extreme
poverty (per capita income under one dollar per day).36
(2) The nation sends a sufficient number of children for
intercountry adoption to enable it to become a significant sending
nation.37
Paradoxically, the incidence of extreme poverty is not in itself
predictive of child laundering problems. The reason is that most of the
poorest developing nations play no significant role in the intercountry
2006] CHILD LAUNDERING 127
38. See Selman, supra note 34, at 16.
39. SeeLuo &Smolin,supra note 30; CECERE,supra note30;JOHNSON,supra note30.
40. See, e.g., Russia’s abused children suffering grim neglect, supra note 32.
41. See, e.g., Peter Selman, supra note 34, at 18; Rick Reilly, Seoul Searching, Time,
August 28, 2000, at 42-44.
adoption system, particularly in relationship to the United States.38 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. The reasons for this
include the following:
(1) In such nations, a significant cause of child abandonment or
relinquishment is often extreme poverty. However, the ethics of
intercountry adoption becomes problematic where poverty induces the
family to give up their child. Under such circumstances, even the cost of
transporting the child from sending to receiving nation, if spent instead to
aid the family, could have kept the family intact. It is ethically questionable
to spend thousands of dollars (or tens of thousands of dollars) to arrange an
intercountry adoption, when aid of less than a thousand dollars would have
kept the child with their birth family. Yet, under current law and practices,
there is no requirement that aid be given or offered to the birth family, on
an unconditional basis, prior to accepting a relinquishment of a child.
Further, where “assistance” is given only to those parents who relinquish
for adoption, even modest assistance can serve as an unwitting (or
purposeful) incentive for placement of a child. Under these circumstances,
it is very hard to draw a clear line between lawful relinquishment and illicit
purchase of a child. Where there is no clear line between lawful adoption
and illicit child buying, even notorious systems of explicit child buying
seem difficult to prosecute or prevent.
By contrast, in countries where there are substantial numbers of
children abandoned or relinquished for reasons other than poverty, there is
unlikely to be much incidence of buying or kidnaping children in order to
supply “orphans” for adoption. For example, in China the combination of
population-control policies and cultural need for a male child produced
large numbers of abandoned baby girls.39 Various social problems in Russia
have produced large numbers of institutionalized children.40 As South
Korea has developed economically, the primary cause of relinquishments
has become the socialstigma associated with single motherhood.41 Thus, the
Chinese, Russian, and South Korean adoption systems have apparently been
128 THE WAYNE LAW REVIEW [Vol. 52:113
42. See, e.g., Stealing Babies for Adoption; supra note 30; China’s great baby sell-off,
supra note 30.
43. See Smolin, supra note 4.
44. See sources cited supra note 11.
largely free of “child laundering” practices.
Recent reports of child trafficking within the Chinese system, if
confirmed, suggest that the large (and increasing) numbers of intercountry
adoptions over the last decade have begun to exhaust the number of babies
and toddlers who are legally available for adoption, causing the temptation
to illicitly launder and traffic children for purposes of intercountry
adoption.42 Thus, even intercountry adoption systems created in a national
context of substantial numbers of orphans must be carefully monitored to
ensure that they do not, over time, inadvertently create the conditions for
illicit child laundering.
(2) In societies with very low per capita incomes, adoption fees, and
other costs that can seem very reasonable from a Western perspective are
sufficient to create an incentive for middle-class persons to illicitly obtain
children for adoption. 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. Large amounts of
money, relative to the economy of the sending country, create a temptation
to launder children.43
(3) In many poor and developing societies, the majority of children
living in orphanages are not orphans. . . Poor families tend to rely on a
complex web of extended family, community, and institutional care to raise
their children, while still maintaining family ties.44 Many who are truly
without a family are older children who are less adoptable and also less able
to learn a new language, adjust to a new culture and family, and meet the
high educational expectations of developed nations. Thus, while the
untrained Western eye may perceive millions of adoptable orphans in such
societies, child stealing/kidnaping rings may still develop, as agencies find
it most convenient or effective to buy or steal the kinds of infants and
children which seem most likely to meet Western specifications. Indeed,
even those adopting older children may find, to their dismay, that they were
in fact stolen or purchased children, as a child laundering scheme structured
primarily around infants sweeps into its orbit some number of older
children.
(4) Nations with a large population of those living in or near extreme
poverty also tend to have a wide financial, educational, and cultural gap
between the population of such poor persons, and the middle and upper
2006] CHILD LAUNDERING 129
45. See, e.g, Sachs, supra note 5, at 3.
46. See, e.g., id., at 1.
47. See Smolin, supra note 4.
48. See, e.g., E. Jane Ellis, Globalisation,Corruption and Poverty Reduction, available
at http://www.transparency.org.au/documents/globalisation.html (last visitedApr.3,2006);
TRANSPARENCY INTERNATIONAL, Corruption is Rampant in 60 Countries, and the Public
Sector is Plagued by Bribery, Says TI, available at www.transparency.org(last visited Oct.
2, 2006) (stating that countries with very low levels of perceived corruption are
predominately rich countries, but “the poorest countries, most of which are in the bottom
half of the index, are in greatest need of support in fighting corruption.”)
49. See Kapstein, supra note 8 (stating “If poorly paid officials will take payoffsto fix
parking tickets or facilitate foreign direct investment, how can it be assumed that they will
not take cuts on child trafficking?” Id.).
classes.45 Thus, the lower classes will include illiterate or barely literate
persons who generally live without the consistent benefit of running water,
modern sanitation, electricity, telephones, books, writing instruments,
newspapers, or computers.46 The middle and upper classes will have a
sharply different lifestyle, as they benefit from modern amenities. Western
adoption agencies looking for partners within these nations will necessarily
find them among middle and upper class persons, who are literate in
Western languages and have access to computers and telephones. These
intermediaries may, however, have such a negative view of the lives of the
poor that they experience little if any pangs of guilt in obtaining children
through illicit means for intercountry adoption. From their perspective, they
are doing these children a favor by sending them to the United States or
Europe, even if they have to obtain children through illicit means. Further,
societies subject to these extreme gaps generally lack effective and reliable
means for the poor to vindicate their rights against abuse by those of the
upper or middle classes.47
(5) Countries with a low per capita income and a large proportion of
persons living at or near extreme poverty tend to suffer from a much higher
incidence of corruption than developed nations. This correlation, while not
perfect, is apparently causative in both directions: Corruption tends to both
impede the economic development of developing nations, and also to
flourish in an environment of overall low GDP.48
In societies with a high
incidence of corruption, public officials, from petty clerks to police officers
to high government officials, become accustomed to demanding and
receiving payoffs. Bribes are required simply to obtain legitimate approvals
and services, but also can become a means of acquiring illegitimate
approvals and services. Under these circumstances, the prospects of creating
a “clean” intercountry adoption system are slim.49 Generous (by sending
nation standards) fees and payments from Western nations provide ample
130 THE WAYNE LAW REVIEW [Vol. 52:113
50. See Kapstein, supra note 8 (stating “Even in the cleanest of supplier states, there
is little money for trackingabuses, fundingorphanages, orsupportingeducational and health
care services.”).
51. See Selman, supra note 34, at 9-14 (describing the demographic significance of
intercountry adoption in sending countries).
52. See, e.g., ILO, A FUTURE WITHOUT CHILD LABOUR, 31-36 (2002); U.S. DEP’T. OF
STATE, TRAFFICKING IN PERSONS REPORT (June 2005), available at http://www.state.gov/g/
tip/rls/tiprpt/2005/ (last visited Oct. 2, 2006).
53. See STATEDEP’T ADOPTIONSTATISTICS,supra note37; Selman,supra note
34.
means for creating an adoption system greased by bribery. Bribed officials
may make little or no differentiation between providing proper or improper
approvals. Poor birth families who complain about abusive practices
affecting them have little chance in a corrupt society, particularly when they
are complaining against those well-equipped with ample funds.
(6) Some poor nations have governments which are quite limited in
their administrative, welfare, and enforcement capacities. These societies
often cannot (or will not) spend the kinds of funds necessary to build strong
capacities in these areas.50 Limited funds may make it necessary to build
effective governmental capacities only in selected areas deemed critical to
national welfare. Even in societies which self-consciously build effective
governmental capacities in areas helpful to the poor, such as health,
education, and social welfare, concentration on building an intercountry
adoption apparatus logically would seem a low priority, given the
insignificant percentage of vulnerable children and families assisted by
intercountry adoption.51 Societies with millions of poor families and limited
resources may not choose to concentrate their limited governmental
capacity on an intercountry adoption system that assists only a few thousand
children a year. Under these circumstances, even laudable adoption laws
and regulations tend to be relatively ineffective, as the government lacks the
capacity to vigorously administer and enforce such laws.
(7) Many poor nations also suffer from a high incidence of child
trafficking, generally conducted for purposes of sex or labor.52 Thus, the
commodification of children may already be endemic in some of these
societies, making it easier for the adoption system to be utilized for such
purposes. Indeed, the commodification of children for purposes of adoption
may seem insignificant in such nations, both numerically and in terms of
harm. Numerically, the numbers involved in intercountry adoption are
comparatively small (generally less than ten thousand annually for most
sending nations, usually less than five thousand).53 By comparison, in some
of these nations hundreds of thousands of children are being trafficked for
2006] CHILD LAUNDERING 131
54. See, e.g, note 52.
55. See, e.g., Selman, supra note 34.
56. See supra note 30.
57. See supra notes 32-33.
purposes of sex or labor.54 As to the amount of harm, child trafficking for
the sex industry or labor will appear to most as substantially worse than
trafficking for purposes of adoption. Under these circumstances, even if the
international adoption system from a particular sending country is ridden
with purchased, trafficked, and stolen children, the harm will seem
insignificant compared to other harms ongoing in the society. Repairing or
reforming the adoption system is unlikely to be a high priority within
nations which have been unable to prevent the widespread and illicit
trafficking of children for sex and labor. Indeed, it seems naïve to expect
societies which have succumbed to widespread trafficking in children for
other purposes, to successfully resist substantial financial incentives for
trafficking children for purposes of adoption.
* * *
Unfortunately, identifying poverty as a strong correlate to child
laundering within the adoption system presents difficult choices. Should the
group of nations which suffer from significant child laundering difficulties,
which largely correlate with the poorest sending nations, be excluded from
the intercountry adoption system? Should the intercountry adoption system
continue to, in practice, exclude most of the poorest nations of the world,
which thus far do not participate in any significant way? Such exclusions
would not destroy the intercountry adoption system, as many of the most
significant sending nations do not suffer from significant child laundering
issues. Currently, South Korea has the highest per capita income among the
significant sending nations, and has a reputation as one of the best of the
sending nations.55 China is the most significant sending nation, and despite
recent reporting on child trafficking generally has earned a reputation for
running a tightly-controlled international adoption system.56 Russia is also
a very significant sending nation, and as mentioned above is generally free
of child laundering, although not of other forms of corruption.57 It would be
possible, thus, to significantly reduce child buying, trafficking, and stealing
from the intercountry adoption system by limiting sending nations to those
with a proven record of avoiding or containing such evils.
Many argue that it is counterproductive to prohibit intercountry
adoption from poor nations, even when they experience serious scandals
involving child buying or stealing. It can seem cruel to stop legitimate
132 THE WAYNE LAW REVIEW [Vol. 52:113
58. See generally, Selman, supra note 37.
59. See The Statistics Tell the Story! ETHICA, available at http://www.ethicanet.org/
item.php?recordid=statistics (last visited Oct. 2, 2006). Ethica’s claims can be checked by
reviewingthe statistics on intercountry adoption providedby theStateDepartment.See U.S.
DEP ’T. OF STATE, BUREAU OF CONSULAR AFFAIRS, Immigrant Visas Issued to Orphans
Coming to the U.S., available at http://travel.state.gov/family/adoption/stats/stats_451.htm
(last visited Apr. 3, 2006).[hereinafter STATE DEP’T ADOPTION STATISTICS].
60. IntercountryAdoption, supra note 3, at 7 (stating “when adoption scandals erupt,
it is not unusual for countries of origin to prohibit intercountry adoption entirely”).
61. See infra notes 69-121 and accompanying text (concerning Cambodia).
orphans from experiencing the benefits of adoption, merely because some
are using the adoption system in illegitimate ways. Some perceive a great
need for intercountry adoption in such poor nations, while others would
argue that intercountry adoption is generally neither a large-scale or
efficient solution to the problems of poor children in such societies.
Regardless of one’s view on this issue, the choice is tragic and difficult, and
is a product of the failure of many very poor nations to create a reliable and
lawful intercountry adoption system.
We need not as yet face this tragic choice between shutting down
nations subject to child laundering or keeping them open despite chronic
scandals. The debate over moratoriums and shut-downs, which have proven
so divisive within the United States, has been built upon the presumption
that there is no way to run a clean intercountry adoption system within
certain sending nations. The debate is in large measure a distraction from
regulatory failure. Until we attempt to implement the kinds of reforms
described in Part III of this article, we cannot know whether it is possible
for poor sending nations to be free of child laundering.
C. Cycles of Abuse
If one examines the demographic patterns of adoption over the last
fifteen years, it becomes apparent that there are cyclic trends. Rather than
being static, the list of top twenty sending nations has undergone significant
change over the last fifteen years.58 Over forty percent of those significant
sending nations have virtually dropped out of the intercountry adoption
system, apparently due largely to scandals related to child buying, child
trafficking, child stealing, and corruption.59 Often, the decision to drop out
of the system has been made by the sending nation;60
sometimes, recipient
nations have imposed moratoriums.61 Often, a particular sending nation will
rise over a few years to unusual significance, only to be followed by
scandals which suggest that the nation’s rise as a sending nation had been
2006] CHILD LAUNDERING 133
62. This is the pattern, I would suggest, in Cambodia and Guatemala. See infra notes
69-121, 212-246 and accompanying text.
63.AreviewoftheStateDepartment statisticalsummary of the top twenty nationsover
the last fifteen years finds that Honduras, Peru, El Salvador, Costa Rico, the Dominican
Republic, Chile, Bolivia, Brazil, Mexico, and Paraguay during 2005 all placed significantly
fewer children for adoption in the United States than they had in previous years. See STATE
DEP’T ADOPTION STATISTICS, supra note 37. See also U.S. DEP’T OF STATE, International
Adoption,availableathttp://travel.state.gov/family/adoption/country/country_376.html(last
visited Oct.3, 2006) (providingrecent statistics and background on adoption from Ecuador).
AmongtheseLatin American nations, Colombia, with287 is the only one toplace more than
one hundred children for adoption in the United States in 2005. See STATE DEP’T.ADOPTION
STATISTICS, supra note 37.
64. See id.The StateDepartment websiteon intercountry adoption has country reports
that summarize the rules of adoption for each sending nation. See U.S. DEP’T OF STATE,
supra note 63. Representative comments include the following: Paraguay does not permit
international adoption as a matter of policy; Bolivia only permits adoption to other Hague
Convention nations (not currently including the United States); adoptive parents generally
muststay in Peru for 8 weeksto adopt, and there is a scarcity of infants available; Honduras
is “strict in its application of adoption law.” Id.
65. See, e.g., Jorge L. Carro, Regulation of Intercountry Adoption: Can the Abuses
Come to an End? 18 HASTINGS INT’L &COMP. L.REV. 121 (1994); Kapstein,supra note 8;
Fieweger, supra note 15 (discussing Ecuador and Latin America); U.S. DEP’T OF STATE,
supra note 63 (stating that “As a result of negative publicity generated by a case of child
smuggling in 1986, Ecuadorian laws regarding adoption by foreigners were changed in an
attempt to provide greater protection for the child.”); Sara Olkon, Baby selling is a major
business in Guatemala, MIAMIHERALD,June 4, 2000 (statingthat “exacerbatingthe demand
for Guatemalan babies are adoption-reform laws enacted by neighboring Latin countries
trying to clean up their own child trafficking scandals.”)
accompanied by a significant incidence of child laundering.62 Sometimes
those scandals will lead to shutdowns; other times, adoptions will continue,
although perhaps more due to a reluctance to impose moratoriums than due
to any real reforms.
These cycles of abuse have been particularly applicable to Latin
American countries. A number of those nations were formerly significant
sending nations, but have now become virtually closed to intercountry
adoption, or reduced their significance within the intercountry adoption
system.63 Most Latin American nations have either forbidden intercountry
adoption, limited it to nations which have ratified the Hague Convention,
or countered abuses through strict application of procedures, such as
requirements that foreign adoptive parents spend a significant period of
time in-country. As a result, the numbers of adoptees coming to the United
States is extremely modest, and many of the available children are older
children.64 The predominate approach to international adoption in Latin
America is apparently a response to earlier notorious scandals.65 Thus, Latin
America, which geographically would be the most natural place for United
134 THE WAYNE LAW REVIEW [Vol. 52:113
66. See STATE DEP’T ADOPTION STATISTICS, supra note 37.
67. See PETER SELMAN, The “Quiet Migration” in the New Millennium: Trends in
Intercountry Adoption 1998-2003, Paper presented at the 8
th Global Conference, Manila,
August 10-12 2005, available at http://www.adopteesolidarity.org/docs/
quietmigration.finalpaper.mht (last visited Oct.2, 2006); Smolin,supra note4, at 477 n.333;
see also STATE DEP’T ADOPTION STATISTICS, supra note 37.
68. See STATE DEP’T ADOPTION STATISTICS, supra note 37; regarding Cambodia, see
infra notes 69-121 and accompanying text; regarding Vietnam, see supra note 31.
States citizens to adopt internationally, has overwhelmingly rejected any
significant role in being a sending region for the United States. The
exception that proves the rule is Guatemala, which has increased its
adoptions to the United States more than sevenfold over the last ten years
and now ranks third as a sending nation for the United States.66 Guatemala
has one of the highest per capita rates of intercountry adoption of any
sending nation,67 but its large role as a sending nation has been
accompanied by notoriety due to publicized concerns with baby-buying and
profiteering, causing a number of recipient nations (other than the United
States) to close Guatemalan adoptions. Thus, Guatemala seems determined
to maintain its place as a signific ant sending nation despite the abuses and
scandals, while other Latin American nations have chosen to close or
sharply limit international adoption to avoid the abuses and scandals.
In Southeast Asia, Cambodia and Viet Nam both saw their numbers rise
prior to experiencing scandal-related shutdowns, indicating that the cycle
of abuse is not limited to Latin America.68 It is unfortunate that so often
when a nation rises as a sending nation it becomes notorious for abusive
baby-buying or kidnaping and becomes subject to closure or rules that
virtually eliminate international adoption.
These cycles of abuse do not prove that every sending nation that rises
in significance will inevitably suffer from corruption and child laundering.
The long-term significance of South Korea has been accompanied by a
relative lack of corruption and child laundering. However, for the nations,
primarily quite poor, that are subject to difficulties with child laundering,
the cycles of abuse tell a story.
The story is one in which the rise of poor sending nations unfortunately
seems to invite the unscrupulous into the adoption system. Western
adoptive parents generally prefer to adopt healthy infants as quickly and as
young as possible; adoption systems which meet these market demands are
likely to attract Western business. As a sending nation begins to attract
more interest in the adoption system, it becomes clear, within the sending
nation, that there is a lot of money to be made for those who can speedily
deliver “orphans” with the requisite characteristics. Given the availability
of thousands of dollars per child to be spent within the sending country, it
2006] CHILD LAUNDERING 135
69. Many of the relevant United States government documents concerning the criminal
prosecution can be found on the Ethica website. See http://www.ethicanet.org/
item.php?recordid=camdocs&pagestyle=default (last visited Oct. 2, 2006).
is not too difficult for the unscrupulous to develop systems that can deliver.
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.”
Credulous Westerners, eager to believe that they are saving children, are
easily fooled into accepting laundered children—for there is no fool like the
one who wants to be fooled. Within a few years, however, these systems of
child laundering become so notorious that scandals usually emerge. At this
point, some sending nations simply conclude that international adoption is
too corrupting and in effect shut themselves down; sometimes, recipient
nations are shamed into imposing moratoriums. Then, interest shifts to
another poor nation, and the cycle of abuse begins over again.
These cycles of abuse have been ongoing over several decades now,
and yet, they are always treated as some kind of surprise within the media
and adoptive parent community. The primary lesson they teach is that poor
sending nations often cannot themselves prevent their adoption systems
from being corrupted, once significant amounts of Western wealth enter the
system. As will be suggested below, only limitations imposed and enforced
by the recipient nations themselves, working cooperatively with the
authorities in sending nations, would be effective to stop the cycles of
abuse.
D. Stories of Abuse: Tracking Child Laundering Within Various Sending
Nations
1. Cambodia
The Cambodian adoption scandal is thus far the best documented
instance of large-scale child laundering within the intercountry adoption
system.69
Indeed, the very term “child laundering” used by this article is
echoed in descriptions of the scandal. For example, a government
investigator described in a recent speech the particular case of “baby
laundering,” which was instrumental in producing the December 2001
moratorium on adoptions from Cambodia:
A baby-buyer bought this child. The mother wanted the child
back. The mother didn’t get the child back. She was told it was
going to an orphanage and she could have him back at any time and
136 THE WAYNE LAW REVIEW [Vol. 52:113
70. Richard Cross, Rushton Distinguished Lecture Series – Reforming Intercountry
Adoption: Present Realities and Future Prospects, Cumberland School of Law, Samford
University (Apr. 15, 2005) (available at http://cumberland.samford.edu/cumberland_
programs.asp?ID=630) (last visited Oct. 2, 2006).
71. See SaraCorbett,Where do babies come from?, NEW YORK TIMESMAGAZINE,Jun.
16, 2002, at 42.
72. See id. at 45.
73. See http://www.ethicanet.org/item.php?recordid=camdocs&pagestyle=default,
supra note 43 (containing a collection of government documents related to the criminal
investigation) (last visited Oct. 2, 2006).
74. See, e.g., Corbett, supra note 71; Alan B. Goldberg & Deb Apton, U.S. Families
Learn Truth About Adopted Cambodian Children, Mar. 25, 2005 (web version of 20/20
special), available at http://abcnews.go.com/2020/print?id=611826 (last visited Oct. 2,
2006);Thomas Fields-Meyer et al., WhoseKids AreThey?, PEOPLE,Jan. 19, 2004, at 74-78.
he’d have a better life. . . .[A]fter there was a raid on two stash
houses the mother approached a human rights groups and said. . .
“I lost my child can you find him?” The human rights group went
looking for this child and unfortunately couldn’t find him. So they
passed this picture . . . . around to all the Western Embassies in
Phnom Penh to find out if in fact anybody had this child.
Unfortunately, the United States Embassy had a visa application for
this child—totally separate identity and background—what we call
‘baby laundering.” Once the director of INS—Mr. Ziglar—found
out about this he said enough is enough, there will be no more kids
coming out of Cambodia.70
Similarly, a detailed press account of Cambodian adoptions in the New
York Times Magazine Section was titled “Baby Laundering.”71 The article
used the term “laundered” to describe how children obtained from birth
families through “lies or false promises in addition to cash” were given
“phony paperwork . . . for adoption processing” and “moved into an
orphanage with no true record of his or her birthplace or parents, rendering
the child untraceable.”72
Although the Cambodian adoption scandal has been extensively
investigated by the government73 and covered by the press,74 many of its
lessons are still little understood. In order to appreciate those lessons, it is
necessary to understand how thoroughly corrupt the international adoption
process in Cambodia became. Prior to FY 1997, Cambodia did not make the
list of top twenty nations sending children to the United States for adoption.
The numbers thereafter are as follows:
2006] CHILD LAUNDERING 137
75. See STATE. DEP’T ADOPTION STATISTICS, supra note 37.
76. See Trish Maskew, Child Trafficking and Intercountry Adoption: The Cambodian
Experience, 35 CUMBERLAND LAW REVIEW 619, 621-25 (2005) (discussing processing of
pipeline cases).
77. See U.S. Immigration andCustoms Enforcement,Backgrounder, Operation Broken
Hearts (Nov. 19, 2004)[hereinafter Backgrounder].
78. See supra notes 75-76 and accompanying text.
79. See Plea Agreement, United States of America v. Lauryn Galindo, No. CR03-
0187Z (W.D.Wash.Jun. 23, 2004), available athttp://www.ethicanet.org/galindoPLEA.pdf
(last visited Oct. 2, 2006).
80. See Backgrounder, supra note 50.
FY 97: 66
FY 98: 249
FY 99: 248
FY 2000: 402
FY 2001: 266
FY 2002: 254
FY 2003: 124
FY 2004 (None listed)
Total: 1, 609 (FY = Oct. 1 to Sept. 30)75
Due to the scandal the United States government suspended the processing
of adoption petitions from Cambodia on December 21, 2001. However, due
to the existence of various categories of pipeline cases approvals are listed
as late as FY 2003.76
If the official and unofficial characterizations of the scandal by United
States investigators are accurate, then a large plurality, and perhaps a
majority, of the 1609 adoptees from Cambodia had been obtained from their
birth families by illicit child-buying, fraud, and child-stealing. Further, the
very rise of Cambodia as a significant sending nation is completely
intertwined with the rise of a criminal “child laundering” conspiracy. The
number of adoptions rose as a direct result of increasing numbers of
purchased and stolen children being placed for adoption.
According to the U.S. government, a child trafficking enterprise
operated in Cambodia between January 1997 and December 2001.77 In other
words, during the entire period from the rise of Cambodia as a sending
nation until the suspension of adoptions by the United States government.78
Although the plea agreement with the principal defendant provided criminal
convictions only for conspiracy to commit visa fraud, conspiracy to commit
money laundering, and structuring,79 the government states that the criminal
conspiracy involved “alien smuggling, visa fraud, wire fraud, mail fraud,
tax fraud, money laundering, and violations of the Foreign Corrupt
Practices Act.”80 Although this was a child trafficking enterprise, no crime
related to child trafficking was charged because of the lack of a federal law
138 THE WAYNE LAW REVIEW [Vol. 52:113
81. See Cross, supra note 70.
82. The government’s Backgrounder summary used the 700 figure, but apparently
Galindo later admitted to involvement in 800.Cf. Backgrounder,supra note77, and Cross,
supra note 70.
83. See Government’s SentencingMemorandum, United States v. Lauryn Galindo, No.
CR03-187Z (U.S. District Ct., W.D. Wash. at Seattle), at 3 (stating that the defendant
“admits that the visa fraud conspiracy involved up to 24 fraudulent immigrant visas
(seventeen of which were charged as Overt Acts in the information to which she has pled
guilty”).
84. E-mail from Richard H. Cross to Author, Dec. 28, 2004.
85. See Cross, supra note 70.
86. See supra notes 4-29 and accompanying text.
87. See Backgrounder, supra note 77.
88. Id.
89. Id
criminalizing child trafficking for purposes of adoption.81
The conspiracy involved some 700 to 800 children,82 or almost half of
all the children placed for adoption from Cambodia during the relevant
period. Although the government proc ured a guilty plea involving only
seventeen to twenty-four cases,83 one of the leading investigators stated his
belief that the “vast majority were bogus. My educated guess is that 98%
were not orphans as defined by U.S. law. In addition, the children were
purchased which is an automatic ground to deny an orphan visa.”84
In
addition, the government had evidence of over one-hundred “false
adoptions” but only obtained convictions on the lesser number of cases as
a part of the plea bargain.85
The criminal conspiracy described by the government involved the
methods of child-buying and child-stealing described earlier in this article.86
Baby-recruiters, who were orphanage directors and taxicab drivers, traveled
to villages to persuade families to hand over their children. The primary
means of persuasion was false statements. Some families were told that
their children would receive food, medical care, and an education from a
reputable NGO in Cambodia; the birth family would be able to regularly
visit their child within Cambodia, and could take their children back at any
time.87 Alternatively, the family was told that a “rich family will raise your
child in the United States; they will send you money and photos of your
child for the rest of your life.”88 Further, “[w]hen your child becomes an
adult, he can petition for you to immigrate to the United States.”89
Obtaining children through these false statements constituted a kind of
child-stealing and kidnaping, particularly since the intent and practice of the
conspiracy was to give the children false identities and histories, identify
them as “orphans,” and then send them to the United States as adoptees.
Thus, the conspirators intended to permanently sever the relationship
between the children and their birth families in a manner wholly
2006] CHILD LAUNDERING 139
90. See id.
91. See id.
92. See id.
93. See id.
94. See Cross, supra note 70.
95. See id.
inconsistent with their promises to the birth families.
Recruiters also employed financial inducements, and thus were engaged
in the systematic practice of baby-buying. Financial inducements provided
to birth parents included payments ranging from $20 to $200, and a fifty
kilogram bag of rice. The recruiters were given a fifty dollar commission
for each child.90
The recruiters initially took children for medical tests; if the child tested
positive for AIDS or hepatitis they were returned to their birth families.91
Thus, the conspirators only were interested in children from whom they
could obtain adoption fees and “donations.”92
Although some children were allowed to remain with their families
until it was time to travel to the United States, many (probably most) were
taken to an “orphanage” or “stash house.” Government investigators were
appalled at the conditions in which the criminal enterprise housed the
children:
ICE agents visited several of the “orphanages” associated with
this criminal enterprise. They observed rusty cribs, hammocks
covered in feces, and torn window screens. Some of the babies
were . . . at a “stash house” . . . where the conditions were
horrendous. The dwelling was hot, stuffy, and smelled of human
excrement. The babies were naked and filthy.93
The detail of the torn window screens is significant in the context of
Cambodia, where mosquito-borne malaria is a significant problem.
The investigator’s shock arose in part because of their realization of
how little it would have cost to improve the conditions of the children. One
of the principal investigators described the scene at one “orphanage” stating
“I was surprised when I came in because it only cost $15 a month for a
nanny yet this little child was laying in a pool of urine.”94 On his second trip
to the same orphanage some months later, the investigator stated “[I] was
surprised when I went into this area where they had the babies because they
knew the Americans were coming that day and I found these babies in these
hammocks soaked in urine. You can see that feces had dried on these
hammocks.”95
The investigator stated that he used the term “stash house” advisedly:
140 THE WAYNE LAW REVIEW [Vol. 52:113
96. Id.
97. See id.
98. The figures are derived by multiplyingthe $3,500 required cash orphanage donation
by the 700 to 800 adoptions facilitated by Galindo.
99. Backgrounder, supra note 77.
100. See Cross, supra note 70.
101. See U.S. DEP’T OF JUSTICE, United States Attorney (W.D. Washington), Hawaii
Resident Sentenced to 18 Months in Prison in Cambodian Adoption Conspiracy (Nov. 19,
2004); Cross, supra note 70; Galindo Plea Agreement, supra note 79, at 11.
As a special agent all I deal with is alien smuggling so I came
in contact with a variety of stash houses in the United States and
see how bad the living conditions are. This was bad. This was
worse than anything I had seen in the United States. There were 16
babies in this place. Many of them were naked. . . . They were
covered in filth, covered in feces. . . . If it had been dogs in the
United States in a place like this the Humane Society would have
been called and people would have been charged with cruelty to
animals. . . .96
The appalling conditions under which the children were housed made
a mockery of the supposedly humanitarian purposes of the adoption system.
The conditions are shocking both because of the small amounts of money
that would have been required to provide good care, and the large amounts
of money acquired by this criminal conspiracy. The adoptive parents were
required to bring $3,500 in cash to Cambodia and give it to the conspirators
as an orphanage donation.97 Hence, the conspiracy received between $2.45
million to $2.8 million in orphanage donations alone. 98 Given the low cost
of labor and materials in Cambodia, it would have taken only a small
percentage of the orphanage donations received to repair screens, hire a
sufficient number of “nannies,” and generally provide excellent care for
these vulnerable infants.
The greed represented by the diversion of orphanage donations away
from the care of children is just one reflection of the financial motivation
of the enterprise. Combining the orphanage donations with adoption fees,
the government estimates that the conspirators “received approximately $8
million dollars from adoptive parents in the United States, and then used the
profits to live lavish lifestyles. . . .”99 This estimate was later pushed upward
to over $9 million.100 Although the government claims that it was never able
to trace all of these funds, the criminal prosecution achieved the forfeiture
of a $1.4 million home in Hawaii and the value of a Jaguar automobile. 101
Further, the conviction for money laundering was substantiated by evidence
of the conspiracy moving large amounts of wealth around in surreptitious
2006] CHILD LAUNDERING 141
102. SeeCross,supra note70; Government’s SentencingMemorandum,supra note83.
103. See, e.g., Cross, supra note 70; U.S. DEP’T OF JUSTICE, supra note 101.
104. See Cross, supra note 70; Fields-Meyer et al., supra note 74, at 76 (quoting
adoptive parents who defended Galindo even after the charges were publicized and hersister
pled guilty).
105. See, e.g., Backgrounder, supra note 77.
106. Substantial Assistance Motion, United States of America v. Lynn Devin, No.
CR03-187Z, (W.D. Wash. Dec. 3, 2004), available at http://www.ethicanet.org/
Devin_sentencing.pdf (last visited Oct. 2, 2006).
107. See Cross, supra note 70; U.S. DEP’T OF JUSTICE, supra note 101; Government
Sentencing Memorandum, supra note 83.
ways.102
The primary reason the United States government pursued a criminal
prosecution in these cases was that the conspiracy was headed by a United
States citizen, Lauryn Galindo, who worked with her sister, Lynn Devin
(also a United States citizen), largely through their agency, “Seattle
International Adoptions.” Galindo led the conspiracy from Cambodia, while
Devin primarily remained in the United States, interacting with prospective
adoptive families.103 Galindo was the key and enigmatic figure in the drama.
She had received a humanitarian award from the Cambodian government
and was revered by many in the adoption community for her work;104 yet,
according to the United States government she was intentionally trafficking
children, sending out baby-recruiters, and bribing Cambodian government
officials.105 Devin ultimately cooperated with the government, pleading
guilty to conspiracy to commit visa fraud and providing what the
government called “substantial assistance in the investigation and
prosecution of co-defendant Lauryn Galindo. . . .”106 Faced with the
evidence and her sister’s assistance to the government, Galindo pled guilty
to visa fraud, money laundering, and structuring, and was sentenced to
eighteen months in prison, in addition to forfeiture of the Hawaiian home
and Jaguar automobile.107
Galindo appears to have become calloused over time to the harm she
was doing to children and families. One adoptive parent describes the
manner in which Galindo persuaded her to complete the adoption of a fourand one-half year old child, even after it became clear that she was being
asked to pay off the birth mother and falsify official application forms:
My new daughter Pheary was waiting for me at the orphan center,
sitting next to a woman I assumed was her orphanage caretaker.
Mr. Visoth said something to Ms. Galindo, whereupon she told me
that the woman with my daughter was not a caretaker but was her
birth mother. I was numb, in total disbelief. . . .I immediately
expressed concern, and told Lauryn [Galindo] that Pheary’s
142 THE WAYNE LAW REVIEW [Vol. 52:113
paperwork indicated she was ‘abandoned” and her parents were
‘unknown.’ How then could her birth mother be here with her at
the orphanage? At the orphanage I learned that Pheary’s sisters and
brother were also there, along with her father. . . .
Being at that time the mother of a 3-year old daughter, I told
Lauryn that I could never remove a child from her family. No
matter how much I wanted to build a family of my own, I would
never do it at the expense of another mother and child. I was
crying. . . Pheary was crying, Pheary was frightened. I asked
Lauryn why was I taking this child when it was obvious that she
already had a family? Lauryn was irritated with me. She said that
I should take Pheary back to the hotel and we could talk about it
later the next day. She said that if I did not take Pheary back to the
hotel I might precipitate some negative consequences for Pheary
and the adoption program. I was constantly reminded that if my
actions caused any of the Cambodian officials to “lose face” I
might jeopardize the entire adoption program and cause trouble for
many other families. I reluctantly agreed to take Pheary to the
hotel. . . .
I also indicated to Lauryn that I did not feel right about giving the
financial ‘gift’ to Pheary’s mother. I had been told to bring a $100
US bill for the ‘nanny’ as a gift. When it turned out that the nanny
was really the birth mother, I told Lauryn that it felt like I would be
‘baby buying, or baby selling’ if I were to give money to the birth
mother. Lauryn replied that if I was willing to give $100 to a
nanny, then I ought to be even happier to give $100 to the actual
birth mother. Reluctantly I handed over the $100 to my daughter’s
birth mother. . . . By this time Lauryn had told me that if I did
not adopt Pheary, she might die or meet a worse fate (implying a
brothel). . . .
The next day at the embassy I was required to fill out some official
forms in order to obtain a visa for Pheary. One of the questions on
the document asked if I knew the whereabouts of any living relative
to the child I was adopting. I asked Lauryn what I should do, since
I had just met Pheary’s birth family less than twelve hours ago.
Lauryn advised me to make a check mark in the box indicating that
I had no knowledge of any living blood relatives to my adopted
child. I refused to do so, and Lauryn became angry and made the
check herself. I ran to the bathroom with my new daughter and
2006] CHILD LAUNDERING 143
108. Government’s Sentencing Memorandum, supra note 83, at 20-21.
109. See Cross, supra note 70. A list of the agencies for whom Galindo facilitated
Cambodian adoptions can be found at http://www.oggham.com/cambodia/archives/
agencies_and_facilitators/000794.html [hereinafter Cambodian Adoption
Agencies/Facilitators]; this author cannot independently verify the accuracy of this list, but
a United States government investigator provided the reference and thus I have reason to
believe it is accurate.
110. SeeCambodian Adoption Agencies/Facilitators,supra note109;Cross,supra note
70.
111. See Cross, supra note 70 (indicating that when he was sent to Cambodia there
were “two Cambodian facilitatorsthat people believed were involved in buying up babies,”
and that he and his partner were sent toCambodia “to find out if any Americans were also
involved in this.”); see also Corbett, supra note 71, at 1(discussing allegations regarding
Cambodian facilitators). According to Corbett, the United States ambassador to Cambodia
stated: “[t]here’s not an entirely reliable facilitator out there. . . . .We don’t trust any of
them.” Id. at 10.
112. See Cross, supra note 70; Government Plea Agreement, supra note 79, at 7-8
(describing involvement of Cambodian public official in criminal conspiracy and use of
money to pay other Cambodian government “clerks, employees or officials”).
cried. . . .108
Significantly, Lauryn Galindo did not just arrange adoptions for her
own agency, but also served as a facilitator for adoptions for other United
States agencies.109 Thus, United States agencies proved themselves unable
to choose law-abiding and ethical facilitators; indeed, they relied on a
facilitator who unashamedly manipulated adoptive parents into paying off
birth mothers and falsifying visa application forms, while diverting
orphanage donations to support her own “lavish lifestyle.”
Unfortunately, the situation in Cambodian adoption is probably much
worse than has been revealed by the successful criminal prosecution of
Galindo and Devin. Galindo facilitated, in one way or another,
approximately half of Cambodian adoptions involving the United States as
recipient nation. The other adoptions were facilitated by Cambodian
nationals and/or others who were not United States citizens.
110 There is
credible reason to believe that some of these Cambodian facilitators used
the same methods as Galindo to obtain children for adoption. However,
because they are Cambodian citizens residing in Cambodia, those
facilitators were not subject to criminal prosecution by United States
authorities.111 (It seems a fair inference that the Cambodian authorities, who
were systematically bribed by Galindo,112 have not been in a position to
bring their own criminal prosecutions.) Further, neither the United States
agencies that used Galindo as a facilitator, nor those that used other
apparently corrupt facilitators, have been subject to criminal prosecution by
the United States government. United States agencies working with corrupt
facilitators who systemically buy and steal children for adoption have not
144 THE WAYNE LAW REVIEW [Vol. 52:113
113. See Maskew, supra note 76, at 627-30.
114. See id.
115. See Corbett, supra note 71, at 11.
been subject to any criminal penalty, so long as they themselves did not
intentionally or knowingly violate the law. It pays, in other words, for
United States agencies to remain credulous and naïve.
In retrospect, it is apparent that the United States government regularly
approved orphan visa applications of Cambodian children who had been
bought or stolen. Further, the government continued to approve orphan visa
applications from Cambodia at the very same time that it conducted a
successful criminal prosecution for visa fraud. When the government
announced its shutdown of Cambodian adoptions in December 2001, there
were over 250 pipeline cases that had been processed to various degrees.
The criminal investigation in Cambodia commenced in the spring of 2002
and involved special agents of the Immigration and Customs Enforcement
(ICE). Simultaneously, a task force “comprised of members of the
Immigration Service, the Department of State, and the Royal Government
of Cambodia” began a case-by-case evaluation of the 250 or more pipeline
cases; each case was subject to a field investigation, to determine whether
to grant an orphan visa for travel to the United States.113 Over the next
eighteen months the two processes ran simultaneously, leading on the
criminal side to indictments for visa fraud and other crimes, and on the civil
side to the approval of every single pending visa application.114 Under these
circumstances, it is impossible to believe that the approvals granted in the
pipeline cases represented an accurate appraisal of whether the children in
question were truly qualified as orphans under United States immigration
law. As a government spokesman stated concerning the approvals issued
after the Dec ember 2001 moratorium: “We know that something is not
right, but because we can’t prove it in U.S. courts under the U.S. systems
of justice, we have no choice but to approve [an application] and allow the
child to come in as an orphan.”115
It appears that the orphan visa process is almost incapable of
successfully screening out purchased and stolen children, even when the
government is on clear notice to focus attention on a particular group of
cases. The orphan visa process virtually invites attempts to launder children,
because it operates as such a successful child-laundering system.
Considering the plausible viewpoint of a government investigator that most
of Galindo’s cases involved illicit monetary inducements or fraudulent
representations and the indications that some of the other facilitators were
involved in the same conduct, it is probable that most of the 1,609 children
who came to the United States from Cambodia between 1997 and 2003
were laundered. Thus, the visa orphan process laundered as many as a
2006] CHILD LAUNDERING 145
116. Holt International & US AID, Cambodia Adoption Survey 2005, available at
http://www.ccainstitute.org/CambodiaFinalReport.pdf.
117. See id. at 5.
118. See id. at 5, 6. Although there are no specific figures given on the ages of the
children when they came into care, a comparison of the ages of the children, id. at 5, with
the time in care, id. at 6, supports the conclusion that most came into care at older ages.
119. See id. at 6-8, 12.
120. See id. at 5 (4,571 male, 3,126 female). On the preference for adopting girls over
boys, and the claim that in Cambodia birth parents were offered higher prices for girls than
boys, see John Gravois, Bringing Up Babes, Jan. 16, 2004, at http://www.slate.com/
thousand purchased or stolen children from Cambodia between 1997 and
2003.
The reasons why the visa orphan process is currently so unsuccessful
in screening out cases of purchased and stolen children will be explored
below. The point at present is that Cambodia, far from being a successful
case of government intervention, is in fact a clear case of regulatory failure.
The government never succeeded in constructing a reliable system for
evaluating orphan visa applications in Cambodia, even when they were on
notice of widespread fraud. In the end, the only solution found was one of
shutting down the system. Some may take the unfortunate lesson from
Cambodia that our choic es are between a shutdown of all intercountry
adoption or accepting a system ridden with child laundering. As I will
suggest below, it may be possible to create more attractive choices but only
if serious reforms are embraced.
An extensive Cambodian Orphanage Survey conducted during 2005 by
Holt International Children’s Services, under contract from the U.S. Agency
for International Development,116 suggests that the intercountry adoption
moratorium does not present a crisis for child welfare in Cambodia. Despite
the shutdown of adoptions in late 2001, this 2005 survey shows no build up
of infants or toddlers in the orphanages. In a population of 7,697 children
in 204 facilities spread throughout Cambodia there are only 329 children
three or younger. Indeed, more than 75% of the children are nine or older,
and hence too old for intercountry placement under current Cambodian
law. 117 Most of the children were placed in the orphanages at much older
ages.118 Further, most of the children living in orphanages have living
relatives outside of the orphanage, often including at least one parent, who
would likely be able to care for them if not for poverty.119
The Cambodia Orphanage Survey suggests that most of the children
who were adopted internationally from Cambodia were a distinct population
of children, separate from Cambodia’s orphanage population.
Demographically, Cambodian adoptees were predominately female infants
and toddlers, while Cambodia’s orphanage population is overwhelmingly
children nine and older, and predominately male.120 The survey confirms the
146 THE WAYNE LAW REVIEW [Vol. 52:113
id/2093899 (last visited Oct. 2, 2006).
121. See Cambodia Adoption Survey, supra note 116,. at 11-12.
122. See, e.g., http://www.censusindia.net/results/resultsmain.html. [hereinafter India
Census] (last visited Oct. 2, 2006).
123. See, e.g.., World Bank, India Country Brief, available at
http://www.worldbank.org/in. (stating India has 260 million to 290 million poor, rising to
390 million if international standard of US $1 day is used) (last visited Oct. 2, 2006).
124. See STATE DEP’T ADOPTION STATISTICS,supra note37;Indian Adoption Scandals,
supra note4, at 473 n. 318; ASAHA BAJPAI, ADOPTION LAW AND JUSTICE TO THECHILD 177-
179 (1996); ASHA BAJPAI,CHILD RIGHTS IN INDIA 41 (2003); Selman, supra note 18, at 17;
SELMAN, supra note 41, at 15, 19.
125. See STATE DEP’T ADOPTION STATISTICS, supra note 37. Indeed, in FY 2005 India
sent only 323 children to the United States for intercountry adoption, the lowest number in
evidence that most Cambodian adoptees were deliberately obtained directly
from birth families for purposes of profit, and likely would have remained
with their families if not for the existence of the child laundering scheme
which operated within the adoption system. Thus, the intercountry adoption
system, even when open, had done little for the kinds of children typically
living in Cambodian orphanages.
The Cambodia Orphanage Survey suggests that an effective child
welfare program in Cambodia would focus on assistance that prevented or
remedied unnecessary separations of children from their immediate and/or
extended families, and assistance to improve the quality of life for the
mostly older children residing at orphanages.121 While repair of the
intercountry adoption system could be a positive good, the intercountry
adoption system appears unlikely to address the pressing needs of most
Cambodian children currently subject to separations from their families.
Given the failure thus far to create a reliable system of intercountry
adoption in Cambodia, it is encouraging to know that the absence of that
option is not an insurmountable hindrance to child welfare efforts on behalf
of Cambodia’s vulnerable children.
2. India
India might seem a prime candidate to send large numbers of children
to other countries for adoption, given its enormous population of one billion
people,122 including hundreds of millions living in extreme poverty.123 From
that perspective, India fails to live up to its potential as a sending nation.
While India has been consistently among the twenty most significant
sending nations for the United States, the numbers are modest. India
generally sends 300 to 550 children per year to the United States and 1,000
to 1,600 children per year to all recipient nations combined.124 These totals
are surprisingly low compared to China and Russia, which each have been
sending more than 5,000 children annually to the United States.125 Indeed,
2006] CHILD LAUNDERING 147
the last fifteen years. See id.
126. See India Census, supra note 122.
127. See Selman, supra note34, at 12-13 (providing data on demographic significance
of adoption for various sending nations, including India).
128. On the rise of India, see JEFFREY D. SACHS, THE END OFPOVERTY 170-87 (2005).
129. See generally Indian Adoption Scandal, supra note 4, at 403.
130. Hague Conference on Private Int’l Law, Status Table 33: Convention of 29 May
1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption,
available at http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=69 (last
visited Oct. 2, 2006).
131. See generally, Indian Adoption Scandals, supra note 4. Of course I am not
claiming that all orphanage directors and facilitators in India are charlatans and profiteers,
but rather that charlatans and profiteers have been induced to become orphanage directors
and facilitators by the opportunities for profits available from intercountry adoption.
132. See Indian Adoption Scandals, supra note 4, at 445-46 (quoting Asha Bajpai,
Adoption Law and Justice to the Child 170 (1996)).
considering that India has 157 million children under six years of age and
more than twenty million births a year,126 it seems that an Indian child has
a better chance of being hit by lightning than being sent overseas for
adoption.127
India would seem well-situated to overcome the propensity of
developing nations to run adoption systems intertwined with corruption and
child trafficking. As the largest democracy in the world, and a growing
economic power successfully competing against developed nations in the
computer and high-tech sectors,128 India appears to possess the capacities
necessary to create an effective adoption system. Unfortunately, India’s
adoption system combines a centralized and complex system of high ideals
and multiple safeguards against trafficking and corruption with a high
incidence of notorious adoption scandals involving trafficking and
corruption.129 This unfortunate paradox has continued unabated for more
than a decade and shows no sign of diminishing, despite India’s ratification
of the Hague Convention on Intercountry Adoption.130
The limited numbers and high incidence of corruption endemic to
Indian adoption appear related. A system which inspires little confidence
and attracts charlatans and profiteers in the guise of orphanage directors and
facilitators simply is not trusted to move large numbers of children out of
the country.131 The numbers remain small because India’s answer to
corruption is not effic iency and transparency but rather bureaucracy, and
this bureaucracy unfortunately seems to simultaneously slow the adoption
system and generate more corruption.132
The following situations illustrate but do not exhaust the difficulties
experienced by India as a sending nation:
148 THE WAYNE LAW REVIEW [Vol. 52:113
133. For an overview of the Andhra Pradesh scandal, including extensive citation of
press coverage and other sources, see Indian Adoption Scandal, supra note 4. For a more
recent review of the scandal in the Indian Press, see Asha Krishnakumar, The Adoption
Market, Vol. 22, Issue 11 (May 21 – Jun. 03, 2005); Ravi Sharma, A Tussle in Andhra
Pradesh, Vol. 22, Issue 11 (May 21 – Jun. 03, 2005), both available at
http://www.frontlineonnet.com/fl2211/index.htm (last visited Oct. 2, 2006).
134. See id.
135. See Indian Adoption Scandal, supra note 4, at 456.
136. Id. at 459-74.
137. See id.; see also Guild of Service, 44th Annual Report (2002-2003), at 9 (noting
a. Andhra Pradesh Adoption Scandals
United States and Indian sources have documented a cyclic series of
adoption scandals from the South Indian state of Andhra Pradesh,
particularly during the period from 1995 to 2001. Several orphanages in that
state systematically sent out scouts to purchase female infants from
vulnerable poor families. The identities of the children were systematically
altered, and falsified documents created. Credulous adoption agencies from
various sending nations partnered with these corrupt Indian orphanages and
thus participated in the laundering of numerous stolen children as “orphans”
and then adoptees. Therefore, the Andhra Pradesh scandals are a significant
instance of the first kind of child-buying scandal, where the intentional
criminal conspiracy is headed by citizens of the sending countries and no
citizen of the recipient nation intentionally participates in child
trafficking.133
There is evidence that Indian agencies also obtained children through
the various forms of child-stealing and kidnaping describing above,
including misrepresentations to birth parents, taking children placed
temporarily for care and education and sending them for adoption, and
changing the identities of missing or lost children in order to place them for
adoption as orphans.134
As in Cambodia, the United States accepted virtually all of the stolen
and kidnaped children as “orphans” and granted visas, despite the
suspicions of one United States government official working in
Madras/Chennai, who slowed the flow of adoptions from Andhra Pradesh
temporarily in 1995-96.135 Unlike Cambodia, the criminal enforcement arm
of immigration (ICE) never investigated the situation in India, perhaps
because there is no indication of any intentional or knowing involvement
of United States citizens. After an adoption scandal in the spring of 2001
replicated and widened an earlier scandal from 1999, Indian authorities
moved to shut-down intercountry adoptions from Andhra Pradesh.136 The
State government responded to the wrongdoing, not with regulatory reform,
but by simply stopping the practice of placing children internationally.137
2006] CHILD LAUNDERING 149
continuing ban on all adoption work in Andhra Pradesh).
138. See, e.g., Indian Adoption Scandals, supra note 4, at 465-473; John Clements v.
All Concerned (2003), 4 Andhra Law Times 644 (Andhra Pradesh H.C.)(on file with
author).
139. See Indian Adoption Scandals, supra note 4, at 456 – 473; GITA RAMASWAMY &
BHANGYA BHUKYA,THE LAMBADAS:ACOMMUNITY BESIEGED 12, 14 (2001)(predictingand
explaining failure of criminal cases and determination of agencies to re-commence adoption
work); Ex-Head of NGO plansto sue Shalini Mishra, THE HINDU, Apr. 29, 2004, available
at http://www.thehindu.com/2005/04/29/stories/2005042917630300.htm (last visited Oct.
2, 2006); K. Venkateshwarlu, Move to Relax child adoption norms?, THE HINDU, Mar. 10,
2005, available at http://www.thehindu.com/2005/03/10/stories/2005031007660400.htm
(last visited Oct. 2, 2006); Sharma, supra note 115.
140. See In the Court of the I Addl Metropolitan Sessions Judge: Hyderabad, Sessions
Case No. 39 of 2003, Cr. No. 457/2001 (Aug. 30, 2005) (72 page judgment on file with
author)[hereinafter Hyderabad Criminal Judgment]; 10 convicted in child adoption case,
THE HINDU, Aug. 31, 2005, available at http://www.thehindu.com/2005/08/31/stores/
2005083114360500.htm; Child Adoption Racket, 6-Month Jail For Sister, Nine Others,
DECCAN CHRONICLE, Aug. 31, 2005.
The courts in Andhra Pradesh have acted and spoken against abusive
intercountry adoption practices, particularly in adoption-related litigation
that has come before them. Thus, the judiciary seem persuaded that the
intercountry adoption system in Andhra Pradesh has been subject to
systematic abuse and that the regulatory authorities have failed to prevent
these abuses.138
The criminal justice system in Andhra Pradesh has, by comparison, had
a mixed record in regard to the scandals, perhaps because of the difficulty
of winning criminal convictions in India. Thus, the authorities within
Andhra Pradesh often have failed to secure criminal convictions, even
against the orphanage directors who are broadly viewed as the ringleaders
of criminal conspiracies to procure children illegally and profiteer from
intercountry adoption. The pattern has been to bring criminal charges and
temporarily imprison orphanage directors or staff only to release them later
and either drop criminal charges or fail to win convictions.139
This pattern was recently broken when the first major criminal
convictions in the Andhra Pradesh adoption scandal were announced in
August 2005. The case concerned the coordinator and a number of staff
from Tender Loving Care Home (TLCH), an orphanage which was
implicated in the 2001 scandal. The coordinator is a well-respected Roman
Catholic nun, and the orphanage is on the same grounds as, and associated
with, a respected Catholic hospital. The other convicted persons were
associated in various ways with the orphanage, hospital, convent or school.
The convictions are presumably under appeal.140
The convictions involving the TLCH orphanage illustrate the manner
in which United States adoption agencies have corrupted even respected
religious institutions within India. The extensive judgment issued by the
150 THE WAYNE LAW REVIEW [Vol. 52:113
141. See Hyderabad Criminal Judgment, supra note 140.
142. See Indian Penal Code, section 471.
143. See Hyderabad Criminal Judgment, supra note 140, at 14-35, 47, 55, 56.
144. Id. at 49.
145. Id. at 4. On thesemonetary limits,seeCent. Adoption Res. Agency, Ministry of
Social Justice & Empowerment, Inter Country Guidelines, s. 4.38(ii). On the development
and significance of these monetary limits, see Indian Adoption Scandals, supra note 4, at
435-37. 445-50. CARA recently issued a new set of regulations which alters the financial
limits once again. SeeCentral Adoption Resource Authority, Guidelines for Adoption from
India—2006, available at http://www.adoptionindia.nic.in/carahome.html (last visited Oct.
2, 2006). The new approach is to limit fees to Indian Placement Agencies to $3,500 USD
per adoption, while banningall donationsfrom foreign prospective adoptive parents, foreign
adoptive parents, or foreign agencies. See id. at 5.17.
146. See Hyderabad Criminal Judgment, supra note 140, at 5, 62.
147. See Hyderabad Criminal Judgment, supra note 140, at 58 (naming US agencies);
Indian Adoption Scandals, supra note 4, at 449-50.
court found the TLCH coordinator and other staff guilty of multiple
violations of Sections 471 and 420 of the Indian Penal Code.141 Section 471
prohibits “using as genuine a forged document.”142 The court found that
various defendants had “fabricated” at least seventy-nine relinquishment
documents for the purpose of “processing the child for in and inter-country
adoption,” in order “to have a wrongful gain for themselves and wrongful
loss to the state and biological parents.”143 The monetary gain, according to
the court, was intended either for benefit of the “institution or . . . the
persons belonging to the TLCH.”144 Thus, the court found the coordinator
of TLCH and multiple other defendants guilty of using the forged
relinquishment deeds as though they were genuine in the adoption process.
The monetary gain that formed a central part of the violation of section 471
had its source primarily in money arising in the United States. The
prosecution noted that the Central Adoption Resource Agency (CARA),
which regulates intercountry adoption on behalf of the Indian government,
limits intercountry processing fees receivable by Indian agencies to 10,000
rupees [222.USD] per case, plus 100 rupees [2.22 USD] per day
maintenance charges.145 The prosecution claimed, and the court agreed, that
TLCH collected from foreign—mostly US—parents an average of 222,318
rupees [4940.40 USD] per case, far in excess of CARA guidelines.146 The
three United States agencies named by the court as involved in adoptions
from TLCH are longstanding agencies, and in fact, their practices regarding
Indian adoption fees are most likely typical. United States agencies
typically charge “India” or foreign program fees ranging from $4,000 to
$9,000. The use of these fees is often not clearly broken down, but it
appears typical that Indian agencies can expect to receive amounts
consistent with that named by the court for each adoption.147 Unfortunately,
these fees/donations, which may appear reasonable by Western standards,
2006] CHILD LAUNDERING 151
148. See id, at 62.
149. See INDIAN PENAL CODE, sec. 420.
150. See Hyderabad Criminal Judgment, supra note 140, at 62.
151. See Hyderabad Criminal Judgment, supra note 140, at 62.
152. See Indian Adoption Scandals, supra note 4, at 435-37.
153. See id. at 445-450; See also “The final objective is the child’s interest,” Interview
with Dr. Aloma Lobo, Chairperson, CARA, Vol. 22, Issue 11, FRONTLINE (May 21 –
June 03, 2005), available at http://www.frontlineonnet.com/fl2211/index.htm (last visited
Oct. 2, 2006).
appear disproportionate and (in the court’s words) “huge” by Indian
standards.148
These “huge amounts” played an even more central role in the
convictions the court issued under section 420 of the Indian Penal Code,
which prohibits “cheating and dishonestly inducing delivery of property.”149
The court specifically found that amounts collected by the “accused” were
“beyond the prescribed charges” under CARA guidelines.150 Thus, as the
Court summarized, various defendants “fabricated the relinquishment deed
in the name of fictitious biological parents and brought them into existence
and submitted them in the family court for the purpose of giving the
children to intercountry adoption and collected huge amounts from the
international parents. . . .”151
The Indian Supreme Court and Central Adoption Resource Agency had
tried to limit corruption and child trafficking in the adoption system by
limiting permissible adoption fees and requiring all donations to Indian
agencies and orphanages to be voluntary and only paid after the child
arrived in the recipient nation.152 United States agencies continued to ignore
and flout these Indian rules, even after it became clear that fees and required
orphanage donations were fueling corruption and child trafficking.153 While
one can fault the Indian government for allowing foreign agencies to
continue to participate in their adoption system even as they violate India’s
rules, it seems clear that the United States agencies are also responsible. The
United States agencies apparently operated under the assumption that the
good of placing children for intercountry adoption justifies bending and
breaking foreign rules limiting adoption fees and donations, and
consequently negotiated financial arrangements that provided incentives for
baby-buying and child-stealing. Unfortunately, the United States agencies
have thus far been able to walk away with little or no liability based on their
lack of actual knowledge of such illicit acts.
It is difficult to estimate the number of children illicitly taken from their
birth parents during the Andhra Pradesh adoption scandals. Given the lack
of a criminal investigation of the kind done in Cambodia, the apparent
inability of United States immigration authorities to otherwise detect and
prevent baby-buying and child-stealing, and the failure of the Indian
152 THE WAYNE LAW REVIEW [Vol. 52:113
154. SeeBAJPAI, ADOPTION LAW AND JUSTICE TO THECHILD,supra note124, at 178-79
(1996).
155. See BAJPAI,CHILD RIGHTS, supra note 124, at 42.
156. SeeThe Lambadas,supra note139, at 8 (“Where there have been more than ample
supply of babies it is reported that these are shipped to Kerala, Tamil Nadu or Mumbai
where their papers for intercountry adoption are processed.”); infra note 183 and
accompanying text (evidence suggesting agency in Maharashtra sources children from
outside that state); Indian Adoption Scandals, supra note 4, at 459-60 (A.P. agencies
sourcing children from neighboring state of Karnataka).
157. See, e.g., The Lambadas, supra note 139, at 13.
158. See, e.g., infra notes 161-66 and accompanying text.
159. See Hyderabad Criminal Judgment, supra note 140, at 14-35, 47, 55, 56.
160. See id. at 9. One charge claimed that the defendants “sold 300 babies,” while
another charge claimed that the “accused bought and gave them [into] intercountry adoption
. . . 436 babies.” Id. The underlying charges related to these claims failed because the laws
involvedrequired a purpose to prostitute the children, which the court understandably found
not to exist given the context of adoption. See id. at 13-14. The charges presumably arose
because of the lack of a law criminalizing the purchase or sale of children in the context of
authorities to implement the high ideals of their system, there has not been
any definitive governmental accounting of the wrongs done. As in
Cambodia, intercountry adoptions in Andhra Pradesh grew simultaneously
with the criminal baby-buying and child-stealing conspiracies. Therefore,
intercountry adoptions from Andhra Pradesh numbered only around 40 per
year during the period from 1991-93154 but by the year 2000 numbered over
200.155 Perhaps as many as a thousand children were placed out of Andhra
Pradesh for intercountry adoption during a time when one or more criminal
conspiracies were developing their networks for the illegal procurement of
children. How many were purchased, stolen, or kidnaped children?
Any attempt to measure the number of children who were purchased,
stolen, or kidnaped by the Andhra Pradesh agencies must take account the
diverse fates and sources of the children. The Andhra Pradesh agencies
impacted far more children than the estimated one-thousand they placed for
international adoption. The agencies apparently also sometimes shipped
excess children out of the state to other parts of India (as well as obtaining
some children from outside of Andhra Pradesh).156 The agencies placed
some children domestically.157 Some of the affected agencies provided an
education or care to children placed there in a temporary boarding situation.
Finally, it appears that a significant number of infants died in the
orphanages.158 It seems most likely that at least two thousand infants and
children came under the care of Andhra Pradesh agencies implicated in the
scandals. These agencies appear to have created paperwork at will,
depending on the respective fate they chose for each child. Thus, the TLCH
judgment attributed almost eighty forged relinquishment documents to that
single institution.159 Further, the prosecution claimed that the TLCH
defendants had purchased 436 babies for international placement.160 Given
2006] CHILD LAUNDERING 153
adoption, leaving the prosecution to attempt to mis-apply laws intended to apply to sex
trafficking. This gap in the law is unfortunately widespread and stems in part from
weaknesses in the law’s conceptual approach to adoption. See generally David M. Smolin,
Intercountry Adoption as Child Trafficking, 39 VAL. U. L.REV. 281(2005).
161. This reluctance to invest medical care in infants was not universal among
orphanages implicated in the scandal. For example, TLCH orphanage, which was associated
with a hospital, may have invested substantial funds in the medical care of some children.
162. Indian Adoption Scandals, supra note 4, at 460, and sources cited in note 261.
163. Id. at 460, and sources cited n.260.
164. See Indian Adoption Scandals, supra note 4, at 458.
the large number of children involved in the TLCH case alone, the existence
of multiple affected orphanages over a number of years, and the systematic
nature of the systems for illicit sourcing of children, it seems most likely
that somewhere between 500 to 800 children were purchased, stolen, or
kidnapped from their parents due to the activities of the Andhra Pradesh
adoption-related agencies and their networks.
Proponents of intercountry adoption generally perceive it as life-saving
and have not focused on the dangers posed by child-laundering schemes,
which needlessly transfer infants and children from parental to institutional
care. Institutional care of infants has several disadvantages. First, infants
fail to receive the benefits of breast milk, including its immunizing effects.
Second, institutional care generally lacks individual care and attention.
Finally, illness tends to spread quickly through large groups of children
concentrated in a small amount of space. Some orphanages may be
unwilling to invest much in medical care for the sick, particularly if they
view infants as easily replaceable and only adoptable if healthy.161 There is
evidence that some orphanages had a ready system for infant deaths; they
simply took the (probably false) identity of the dead infant and applied it to
another infant, thus ensuring no slow-down of the child-laundering
process.162 Although there has been no accounting of the orphanage death
rate in Andhra Pradesh, reports of infant graveyards at an orphanage
suggest it was substantial. 163
The likelihood of substantial numbers of infant deaths in the Andhra
Pradesh orphanages is underscored by the publicized deaths of ten infants,
which occurred immediately after the Andhra Pradesh government removed
228 children from two of the private orphanages affected by the scandal. It
is unclear whether these deaths were due primarily to poor care at the
private orphanages, poor care by the government, or both; however, the
inability of the government to keep these infants alive, even under the glare
of publicity caused by the scandal, is suggestive as to the fate of infants who
may have died in obscurity when neither press nor government were
watching.164 Similarly, two years later, when the government again removed
children from one of the (re-opened) private orphanages, the government
154 THE WAYNE LAW REVIEW [Vol. 52:113
165. See id at 461.
166. See The Lambadas,supra note139, at 20 (listinginfant and child mortality rates).
167. See Indian Adoption Scandals, supra note 4, at 449.
168. See World Bank, India Country Brief, supra note 123.
169. See Indian Adoption Scandals, supra note 4, at 458.
immediately hospitalized one-third of the children.165 Given the evidence of
high orphanage death rates in Andhra Pradesh, it cannot be assumed that the
adoption system operated to save lives, even when assuming significant
rates of infant and child mortality and female infanticide among poor and
tribal families.166
In India, as in Cambodia, most attempts at child laundering were, from
a criminal perspective, successful. The Indian and foreign (i.e., U.S.)
systems accepted the purchased or stolen children as legitimate orphans and
processed them through the adoption system. In addition, child laundering
was quite profitable for the persons at the top of the conspiracy, who gained
between $2000 and $7000 per intercountry adoption,167 in a society with a
per capita income of less than $700 where a middle-class person commonly
has an income under $10,000 annually.168 The vast majority of the children
obtained for adoption were too young to have reliable memories of their
birth family that could verify or contradict their official paperwork. Thus,
in a typical case of child laundering, there is very little likelihood of tracing
the true facts, particularly once the child has been placed overseas.
In Andhra Pradesh, as in Cambodia, no effective system for regulating
intercountry adoption was ever created. Instead, a cyclic series of scandals
every few years, each broader and more serious than the last, finally led to
a self-imposed shut-down of intercountry adoption in 2001. As a regulatory
matter, the adoption system in Andhra Pradesh never developed the
capacity to distinguish accurately between true orphans and children who
had been purchased or stolen. Similarly, the adoption system proved unable
to consistently deny notorious child-traffickers access to the system; the
implicated agencies and persons suffered temporary repercussions but with
perseverance were allowed back into the interc ountry adoption system.169
Thus, Andhra Pradesh, like Cambodia, appeared to provide the limited
choice of accepting a corrupt system interwined with child trafficking or
shutting down all intercountry adoptions.
b. The Mystery of Maharashtra
The State of Maharashtra in India contains approximately 9% of India’s
population, and yet commonly accounts for 40% of India’s intercountry
adoptions. The relatively small city of Pune, within Maharashtra, represents
between 2.5% and 3.75% of India’s population, but accounts for
2006] CHILD LAUNDERING 155
170. See id. at 474.
171. See Dionne Bunsha, The Adoption Nightmare, Vol. 22, Issue 11, FRONTLINE
(May 21-Jun. 03, 2005),available at http://www.frontlineonnet.com/fl2211/index.htm(last
visited Oct. 2, 2006).
172. See The Adoption Nightmare, supra note 171.
173. See id.
174. See Complaints from Foreign Adopters, Vol. 22, Issue 11, FRONTLINE (May 21 –
Jun. 03, 2005), available at http://www.frontlineonnet.com/fl2211/index.htm (last visited
Oct. 2, 2006).
175. Id.
176. Id.
177. Id.
approximately 25% of all intercountry adoptions.170 Indeed, a single
orphanage within Pune, Preet Mandir, may account for seven percent of all
intercountry adoptions from India.171
The fundamental question regarding Maharashtra is whether it is a
model for the rest of India in how to fulfill the nation’s promise as a
prominent sending nation or whether it merely represents the high-volume
sector of a corrupted adoption system. Unlike Andhra Pradesh, there have
been no dramatic arrests or shutdowns in Maharashtra. However, the Indian
press has begun to focus on accusations against Preet Mandir, the Pune
orphanage that accounts for a significant share of India’s intercountry
adoptions. These charges center on heavy-handed demands for “donations,”
preferential treatment based on the giving of large “donations,” and
substandard care of children. These charges suggest that the orphanage is
run as a profit center, with high fees and “donations” diverted to a
significant degree to personal profit.172 The director of Preet Mandir points
to a visit by the President of India as an indication of his innocence; 173
whether or not it indicates innocence, such contacts may indeed help
insulate Preet Mandir from negative repercussions.
A recent report in the Indian press quoted extensively from letters of
complaint sent by “foreign adoptors” to India’s Central Adoption Resource
Agency (CARA). The letters concerned an agency in Maharashtra, although
the article did not specify the agency name. Those complaining included
persons from Singapore, Sweden, the United Kingdom, and the United
States. The complaints indicated inordinate and insistent demands for fees
and “donations.”174 One United States agency indicated that of their first
group of six referrals from the agency “three babies died, one was taken
back, and two were unhealthy.”175 Although the “director demanded huge
amounts in donations. . .[t]he money . . . did not go towards the welfare of
the children, who were maintained in unhygienic and filthy condition.”176
Another letter commented that “[a]lmost all babies were covered with
scabies and the same uncleaned feeding bottle was used for all babies, who
were hardly fed two bottles of watery milk the whole day.”177
156 THE WAYNE LAW REVIEW [Vol. 52:113
178. Id.
179. Id.
180. Id.
181. Id.
182. Id.
183. Id.
Three different parents described the respective children they adopted
from this Maharashtra orphanage as follows:
The child was covered with scabies from head to foot, had
fungal infections, was severely dehydrated and was suffering
from septicaemia.”178 “[S]he was sick with scabies from head
to foot, parasites in the stomach and intestinal problems. She
was also filthy with sores all over her body. She was
developmentally very backward as she could not even hold her
head up or roll over. . .179
[S]he was skin and bones with scabies from head to toe and
warts and black spots all over her body (Molluscum
contagiosum). She was severely malnourished and could not
even walk. She had severe laceration marks on her wrist
suggesting that she was tied down.180
Despite these shocking conditions, the orphanage in question was not
satisfied with $2,000 per adoption, and instead sought to charge $6,000, as
well as seeking in-kind gifts ranging from whiskey to a digital camera. The
director threatened to “take back the baby if they did not pay more. Several
rules were flouted if you paid more.”181 Given the very low cost of hiring
nursery workers (ayahs) in India and the modest cost of basic supplies for
infant care, it appears that the United States agency observation that the
funds were not spent on the care of the children is accurate.
Although the persons complaining did not specifically mention babybuying or child-stealing, CARA received two complaints that bear on the
question of the source of Maharashtra’s many international adoptees. First,
the complaint mentioned that children were “referred to the adopters before
they were legally free for adoption.”182 This may suggest that the agency
was confident that it could get any child free for adoption at will. Second,
the Maharashtra agency allegedly stated in a March 2001 letter that “the
Gujarat government has sanctioned 200 children and will be transferring
100 children to our new facility within 4 to 6 weeks.”183 This indicates that
this Maharashtra agency was sourcing children from another Indian state.
Press reports in India also indicate that despite the large number of
children being sent in intercountry adoption from Maharashtra, Indian
2006] CHILD LAUNDERING 157
184. See Indian Adoption Scandals, supra note 4, at 474.
185. See id. at 407-17, 427-31.
186. See Families for Children, infra note 204, at 645.
187. See Asha Krishnakumar, Behind the façade &Asha Krishnakumar, The Adoption
Market, from Vol. 22, Issue 11, FRONTLINE (May 21 – Jun. 03, 2005), available at
http://www.frontlineonnet.com/fl2211/index.htm; Ambujam Anantharaman, Big Racket of
Small Babies, THERISINGNEPAL,Jul. 20, 2005, available at http://www.gorkhapatra.org.np/
pageloader.php?file=2005/07/20/editorial/editorial1; PressRelease,Centre for ChildRights,
Campaign Against Child Trafficking, Fact-finding Investigation into the Functioning of
Licensed and Recognized/Registered Adoption Placement Agencies and Regulatory Bodies
in Tamil Nadu (Aug. 19, 2005).
188. Behind the Façade, supra note 187.
189. Id.
190. See S. Murari, An Adoption Racket in Chennai Backfires on Parents, DECCAN
HERALD (May 15, 2005); Parents of MissingKids Throng CoP Office, NEWS TODAY, May
6, 2005, available at http://newstodaynet.com/06may/cr4.htm.
prospective adoptive parents in that state are frustrated by a lack of orphans
to adopt.184 Under Indian and international law, in-country adoption should
be favored over intercountry adoption.185 Thus, the international adoption
system within the state appears to have developed an illegal priority over incountry adoption, presumably based on the much larger fees available from
foreign placement.
The complaints against adoption in Maharashtra do not necessarily
condemn the entire system there186 but indicate the inability of that system
to guarantee children in care a decent standard of care despite ample funds.
The Maharashtra adoption system also seems unable to prevent profiteering
and a certain measure of corruption. What is unclear, however, is how
widespread the poor care and profiteering extend. Further, it is unclear
whether Maharashtra, which borders Andhra Pradesh, has become subject
to the kind of illicit sourcing of children which occurred in Andhra Pradesh.
3. Child-Stealing in Tamil Nadu
Press reports from South Asia indicate that intercountry adoption in the
South Indian State of Tamil Nadu have become intertwined with the
placement of stolen children.187 As in other adoption scandals, it is difficult
to glean precise numbers of affected adoptions. Reports concerning a May
2005 arrest of five persons for kidnaping and selling “about 350 children to
an adoption agency in the city”188 seems to indicate large-scale childstealing for adoption. The child laundering process is also evident from
these reports because the press and police complain about the dilemma of
stolen children being placed under a “perfectly legal adoption process.”
189
Further, it appears that some number of these children have been sent to
foreign countries for intercountry adoption.190
158 THE WAYNE LAW REVIEW [Vol. 52:113
191. See Krishnakumar,supra note187; Murari,supra note190; Anantharaman,supra
note 187; Parents of Missing Kids Throng CoP Office, supra note 190.
192. See Krishnakumar,supra note187; Murari,supra note190; Anantharaman,supra
note 10; Parents of Missing Kids Throng CoP Office, supra note 151.
193. See Krishnakumar,supra note187; Murari,supra note151; Anantharaman,supra
note 187; Parents of Missing Kids Throng CoP Office, supra note 190.
194. See Press Release,Campaign AgainstChild Trafficking (CACT-TN), Fact-finding
Investigation into the Functioning of Licensed and Recognised/Registered Adoption
Placement Agencies and Regulatory Bodies in Tamil Nadu, at 7-8 (Aug. 19, 2005).
Methods used in Tamil Nadu appear to include stealing infants from a
hospital, placing lost children for adoption, kidnapping children from streets
or homes, obtaining children for boarding school arrangements and then
placing them for adoption, and creating various kinds of false documents.
Agencies are investigated and lose their license, only to somehow regain
them. The latest scandal of 2005 has resulted in parents of missing children
going to police headquarters to pour over photographs obtained from a local
adoption agency, hoping to find their son or daughter. Press reports indicate
that at least some of the children have been traced to Europe.191
Press reports suggest that the difficulties in Tamil Nadu go beyond a
single corrupt agency, but rather permeate the system.192 Intercountry
adoption in the state appears to have grown and become intertwined with
profiteering and illicit methods. As with adoption scandals in other Indian
states, the elaborate bureaucratic system for the regulation of intercountry
adoption seems to have been ineffective. Each part of the regulatory system
seems to blame the other when publicity brings these cases to light.193
An investigation into adoption in Tamil Nadu, conducted under the
auspices of the Campaign Against Child Trafficking (CACT-TN), found
that
Trade and lucrative profit-making business in babies and children
given for adoption is flourishing despite Supreme Court directions,
court interventions, monitoring by regulatory bodies and legal
procedures . . . [I]llegal profit is made . . . from this illegal trade
especially through Inter-Country adoption . . . Adoption agencies
function in a secretive and non transparent manner . . . Most . . .
[of] the adoption agencies are run as family trusts. A high
percentage of the decision makers of the Board are family
members. Family business for family welfare and profit.194
The overall picture that emerges from the CACT-TN report is of a
compromised regulatory system that was ineffective in preventing largescale profiteering and trafficking in children under the guise of adoption.
2006] CHILD LAUNDERING 159
195. See TERRE DES HO MMES, CRIME AND OTHER SMALL THINGS, (Osnabrück,
Germany September 1999)(available from author). The German-language website
www.adoptionsopfer.de provides extensive documentation of the German cases discussed
herein.
196. See id.
197. See id.
198. See id.
199. See id.
200. See id.
201. See id.
202. See id.
4. German Cases
A loosely organized group of German adoptive parents and associated
persons has publicized some tragic cases involving the adoption of stolen
children from India. The human rights organization Terre de hommes has
investigated and substantiated these cases. Some of these cases involve selfhelp remedial actions quite rare in intercountry adoption: the return of
stolen children to their birth families.195
For example, an eight year old child from the North Indian city of
Jalandhar in Punjab was handed over temporarily to an orphanage due to
family problems.196 The orphanage, however, processed the child through
the Dehli courts as an orphan and granted guardianship to a German
couple.197 The couple took the child to Germany and completed a German
adoption.198 However, after the child learned some German, she informed
her adoptive parents that her mother was alive and had not given her up for
adoption.199 Eventually, the adoptive parents found the birth mother in India
and returned the child to her.200 The German courts subsequently rescinded
the adoption.201
This group of German adoptive parents appears to have discovered and
publicized approximately five cases; there are apparently a number of others
which have not been publicized.202 Several of the children have returned to
India to live at some point, sometimes for education, sometimes as a part of
returning them to their Indian family. The cases generally involve a
religious organization obtaining children for temporary care or schooling
and then processing the child through the courts as an orphan and then
adoptee. The cases all involve older children who, under these
circumstances, often were unable to adjust to their adoptive families and
demonstrated behavioral and emotional symptoms of extreme distress. The
children were often transferred to a different orphanage from the one where
they had been placed for temporary care, as a part of their preparation for
adoption. Most of the Indian guardianships were processed in Dehli, as
these are North Indian cases. The same German agency was involved in all
160 THE WAYNE LAW REVIEW [Vol. 52:113
203. See id.
of the cases.203
The short descriptions available of these cases encapsulate severe
suffering by all adoption triad members: birth family members who are
tricked out of their children and sometimes seek, against all odds, the return
of their child; children who sometimes suffered in their Indian families,
suffered in the Indian orphanages, and then were sent under false pretenses
to another nation for which they were ill-prepared to cope; adoptive parents
seeking to help and love an older child in need of a family who instead were
given a stolen child understandably unable to adapt to their new family and
culture.
Although the number of publicized cases in this group of cases may be
small, there is much about them that suggests they are the visible
manifestation of a much larger phenomenon. First, all of the documented
cases involved older children who generally resisted their adoptive
placements and were able to challenge the false premises and histories of
their paperwork. The statements and adjustment difficulties of these older
adoptees seem to have provided the impetus to question and investigate the
circumstances of the adoptive placement. The vast majority of adoptees,
however, are taken from their families at too young of an age to know the
circumstances of their placement and the names of their birth family
members. Stolen infants tell no tales, even if they may become suspicious
later in life of the circumstances of their adoption. Given the small number
of older adoptees from India going to Germany, the presence of five
documented cases of this kind, along with some number of those discovered
by the group but not publicized, suggests that there are a much larger group
of stolen Indian infants who were adopted in Germany. Second, the
investigation of these cases has revealed that Indian agencies and Indian
courts in Dehli accepted paperwork that was either contradictory or
uninformative and generic, making it relatively easy to launder stolen
children through the courts. The German officials and courts then seem to
have simply accepted the view of the Indian institutions that the children
were eligible for intercountry adoption. Hence, these cases reveal a set of
adoption processes quite open to the laundering of children.
5. The Indian Adoption System: Conclusions
This exploration of significant degrees of illicit and improper conduct
in Indian adoptions emanating from many different parts of India, over
several decades, suggest that the Indian system has been extensively used
for child laundering. Indeed, the author is aware of a number of other
similar cases which have not been publicized, and thus which could not be
2006] CHILD LAUNDERING 161
204. Although I am not in a position to verify its claims, a published article by a
number of professionals working for Holt International Children’s Services suggests that
Holt’s India programs are succeeding in building some of the key capacities of an ethical
program: the capacity to promote domestic adoption and place children domestically, and
the capacity of “maintaining children in their birth families.” See Carole F. Stiles, Darawan
Dhamaraksa, Rosario dela Rosa, Tanya Goldner & Roxana Kalyanvale, Families for
Children: International Strategies to Build In-Country Capacity in the Philippines,
Thailand, Romania and India, 80 Child Welfare 645, 651 (Sep/Oct 2001)(describing Holt
India program originally centered in Pune, Maharashtra).
205. See Indian Adoption Scandals, supra note 4.
206. See, e.g., id. at 459, 461.
207. See id. at 459, 467-68.
208. See, e.g., supra notes 140-53 and accompanying text.
cited herein.
Given the history of adoption in India, and the size and variation of the
country, there may be a significant group of lawful and successful adoption
programs operating within India.204 It is clear, however, that these legitimate
programs operate within a broader adoption system incapable of weeding
out corruption, profiteering, and child laundering.205 Further, it is clear that
Western adoption agencies frequently are unable to distinguish between
Indian orphanages that obtain children in legitimate ways, and those who
illicitly source children. 206 Prospective adoptive parents, who depend on
their agencies to partner with reliable and ethical Indian facilitators, are
even less able to ensure that the children they adopt are orphans rather than
stolen or purchased children.
The Indian adoption system further illustrates the tendency of
intercountry adoption to corrupt. It appears that a number of the Indian
orphanages and organizations that became embroiled in child laundering
practices were religious organizations.
207 While these abuses certainly have
not been limited to, nor dominated by, religious organizations, the capacity
of a number of different religious organizations to become involved in such
conduct is disturbing. To a large degree, United States agencies, which have
demanded from adoptive parents foreign fees and “donations” far in excess
of Indian law, are responsible for the corruption of the Indian adoption
system.208 These excessive fees and donations have created a temptation to
Indian individuals and organizations, religious and secular, to buy and steal
children, forge documents, and circumvent the law’s preference for domestic
adoption. Unfortunately, it may also be the case that child laundering in the
context of adoption is a particular temptation for some religious
organizations. Thus, a religious organization within a sending nation may see
little or no harm in using trickery or financial inducement to obtain the
children of destitute parents of another faith, in order to transfer the child to
what they view as a superior upbringing in a superior family practicing a
superior religion. If you add to this temptation the additional financial
162 THE WAYNE LAW REVIEW [Vol. 52:113
209. See supra note 139 and accompanying text.
210. See Indian Adoption Scandals, supra note 4, at 452.
211. It appears that only a very small percentage of the child welfare institutions and
organizations in India who work with children and vulnerable families are accredited by
CARA for intercountry adoption.
motivation, whether for personal gain, power, or even humanitarian
purposes, intercountry adoption can seem like a unique opportunity to “do
well by doing good,” to use the clichéd term. Thus, acts which from a legal
perspective constitute illicit child-buying or child-stealing can be selfjustified as humanitarian acts. Given the fact that adoption scandals in India
usually do not produce successful criminal prosecutions,209 and that the
scandals themselves are often perceived as political attacks rather than
neutral law-enforcement,210 it is easy to see how seductive is the religious
temptation to child launder. This is not to say that all or even most religious
organizations succumb to this temptation. Most religiously orientated
organizations working with children and families either do not succumb to
these temptations, or else avoid the temptations altogether by avoiding
intercountry adoption.211 Unfortunately, however, a disturbing number
apparently do.
This religious temptation, as I have defined it, is really just a subset of
a much larger set of temptations which permeate the culture of adoption. It
is very easy for adoptive parents, prospective adoptive parents, and adoption
professionals and facilitators to understand intercountry adoption as a saving
act. In intercountry adoption, it is believed, children are saved from a host of
tragedies, including infanticide, poverty, malnutrition, illiterac y, child labor,
prostitution, and severe gender discrimination. However, most of this has
little or nothing to do with the lack of parents: the perceived harms are
understood as the unfortunate fate of the poor of India and other sending
nations. Once adoption is justified in such redemptive terms, it would seem
to matter little how one obtains children from adoption, for the laundered
child and the true orphan were equally saved from a horrible fate.
The key element of the adoption myth is its focus on saving children
apart from their parents or community. In mythological or religious terms,
we might say that adoption saves the child while damning the parents and
community. A method of secular salvation or social work that focuses on
saving children apart from their birth families and communities is
particularly subject to the temptation to illicitly separate a child from their
parents. While the adoption community remains officially opposed to illicit
child laundering, it is even more committed to keeping open the saving work
of adoption. While United States agencies prefer to work with ethical
facilitators and orphanages, in the end many are willing to work with anyone
who can obtain children and get them processed through the system. Hence,
2006] CHILD LAUNDERING 163
212. See Peter Selman, The Quiet Migration in the New Millennium: Trends In
Intercountry Adoption 1998-2003 at 15 (unpublished paper presented at the 8
th Global
Conference, Manila, August 10-12, 2005)(on file with author); see also Indian Adoption
Scandals, supra note 4 at 477 n 333; STATE DEP’T Adoption Statistics, supra note 37.
213. STATE DEP’T Adoption Statistics, supra note 37.
adoption corrupts alike the religious and irreligious, as both too often are
willing to tolerate the wrongs of child laundering, profiteering, and
corruption for the greater good of saving children from their birth families,
communities, and nation.
E. Guatemala
The rise of Guatemala as a sending nation contrasts starkly with the
decision of a number of other Latin American countries to sharply limit
intercountry adoption due largely to negative experiences with corruption,
profiteering, and child laundering. Guatemala at present has one of the
highest per capita intercountry adoption rates among sending nations: in
fiscal year 2005, Guatemala, with a population of less than fourteen million
people, placed 3,783 children for adoption in the United States, ranking third
behind China (7,906) and Russia (4,639).212 The growth of Guatemala as a
sending nation can be seen in the following chart which represents
placements to the United States:213
Fiscal Year Guatemalan
Adoptions
Rank among Sending
Nations
2005 3,783 3
rd
2004 3,264 3
rd
2003 2,328 3
rd
2002 2,219 3
rd
2001 1,609 4
th
2000 1,518 4
th
1999 1,002 4
th
1998 911 4
th
1997 788 4
th
1996 427 5
th
164 THE WAYNE LAW REVIEW [Vol. 52:113
214. See Latin American Institute for Education and Communication (ILPEC) &
UNICEF, Adoption and the Rights of the Child in Guatemala 18 (2000), available at
http://www.iss-iss.org(last visited Oct.2, 2006) (the web siteof the InternationalReference
Centre for the Rights of Children Deprived of Their Family (IRC/ISS), a program “created
by the General Secretariat of the International SocialService)[hereinafterRights of the Child
in Guatemala]; Indian Adoption Scandals, supra note 4, at 477 n 333.
215. SeeBBC News, Country profile: Guatemala, available at http:////news.bbc.co.uk/
1/hi/world/americas/country_profiles/1215758.stm (last visited Oct. 2, 2006).
216. See Rights of the Child in Guatemala, supra note 214.
217. See BBC News, Country profile: Guatemala, supra note 215.
218. Id.
219. See BBC News, Country profile: Guatemala, supra note 176; Sachs, The End of
Poverty, supra note 20 at 67-72.
220. See, e.g., Rights of the Child in Guatemala, supra note 214, at 29-33, 40-42, 48;
Deborah L. Spar, The Baby Business 184 (2006). As will be noted below, these high costs
are for United States citizens adopting from Guatemala; those from other sending nations
1995 449 4
th
1994 436 5
th
1993 512 3
rd
1992 418 2
nd
1991 329 7
th
1990 257 8
th
The United States receives the majority of Guatemalan children sent for
intercountry adoption.214 Thus, the growth of Guatemala as a sending nation
is intimately connected to the role of the United States as a recipient nation.
Guatemalans suffered through a thirty-six year civil war which ended in
1996.215 A large proportion of Guatemalans live in poverty, including twothirds of Guatemalan children.216 Approximately half of the people belong
to various indigenous ethnic groups, primarily of Mayan descent.217 The
nation suffers from high rates of illiteracy, malnutrition, and infant
mortality.218 Guatemala suffered from economic stagnation during the period
from 1980 to 2000, producing negative economic growth.219
Paradoxically, although the widespread poverty of the people is often
viewed as creating the need for intercountry adoption, the costs of
intercountry adoption from Guatemala are unusually high. International fees
for Guatemalan adoptions commonly are in the range of $18,000-$19,000,
which are apparently paid to Guatemalan attorneys and are separate from the
fees paid to United States placement agencies. This pushes the total costs of
a Guatemalan adoption, inclusive of travel expenses and necessary
governmental fees, close to $30,000.220 The capacity of private attorneys to
2006] CHILD LAUNDERING 165
apparently have paid much lower costs.
221. See Rights of the Child in Guatemala, supra note 214, at 5.
222. Id. at 6.
223. For descriptions of the notarial system, see International Adoption, Guatemala,
State Department, available at http://travel.state.gov/family/adoption/country/country
_389.html(last visited March31,2006)[hereinafterStateDepartment Guatemala Summary];
Rights of the Child in Guatemala, supra note 214.
224. See, e.g., Edward Hegstrom, E. Kaye Fulton, et al., Adopting from Abroad,
available at http://www.thecanadianencyclopedia.com/
index.cfm?PgNm=TCE&Params=M1ARTM0010465 (last visited Oct. 2, 2006); Edward
Hegstrom, Black market in adoptions described in Guatemala, GLOBE (September 14,
1997); McGirk & Olkon, Baby-selling is a major business in Guatemala, Miami Herald,
June 5, 2000.
225. See Country Survey Reveals Status of International Adoption, available at
http://www.adoption.ca/news/050730cystatus.htm(lastvisited Oct 2, 2006); Martin Jacot,
Adoption For Love or Money, available at http://www.unesco.org/courier/1999_02/uk/
ethique/txt1.htm (last visited March 31, 2006); Letta Tayler, Adoptions Under Fire in
Guatemala, NEWSDAY, Oct. 26, 2003.
charge such large fees stems from their special role in the Guatemalan
system. Foreign adoptions in Guatemala are generally conducted through the
“notarial system.”221 Adoptive parents provide the attorney with a power of
attorney, and the attorney generally represents adoptive parents, birth
parents, and the child.222 The primary review of the case is conducted by the
Guatemalan Solicitor General’s office (PGN). This notarial system operates
to facilitate the quick adoption of young infants.223
Guatemalan adoptions have been under a cloud due to concerns with
buying and stealing children for many years.224 Due to these concerns,
Canada has suspended adoptions from Guatemala. 225 A controversial United
Nations report of the Special Rapporteur on the sale of children, child
prostitution and child pornography concluded in January 2000 that:
13. . . legal adoption appears to be the exception rather than the
rule. Since huge profits can be made, the child has become an object
of commerce rather than the focus of the law. It would seem that in
the majority of cases, international adoption involves a variety of
criminal offences including the buying and selling of children, the
falsifying of documents, the kidnapping of children, and the housing
of babies awaiting private adoptions in homes and nurseries set up
for that purpose.
29. . . .It is . . .reported that the lawyers handling adoptions, in
collusion with others, also operate houses where children who are
stolen or purchased are cared for while awaiting finalization of the
intercountry adoption.
31. According to the information received networks of (usually
female) recruiters, hired by lawyers, pay rural midwives
166 THE WAYNE LAW REVIEW [Vol. 52:113
approximately US $50 to register the birth of a non-existent child,
using a false name for the birth mother. Upon payment of
approximately another US $50, another woman “becomes” the
mother and is given a baby—usually stolen—and told to take the
baby to Guatemala City to give it up for adoption. The woman signs
the notary’s documents giving up “her” child and the baby is placed
in a foster environment, preparatory to adoption proceedings.
33. There are notaries and lawyers who buy babies while they
are still in the mother’s womb. The purchase is arranged by the
lawyers and notaries either personally or through agents and
middlemen. Even the birth takes place under the supervision and
care of the notary.
35. Another means of procuring babies for international
adoption is allegedly by tricking or drugging illiterate birth mothers
into putting their thumbprint on blank pieces of legal paper which
are subsequently filled in to read as a consent to adoption of the
baby. The mothers are then threatened by the lawyers if they attempt
to get their babies back. Ignorant of the law, these fearful mothers
often painfully give up the fight and assume that nothing can be
done to help them because they are poor.
36. In general, recruiters prefer to deal with mothers whose
babies have not had their births registered, or have not yet been
born. The recruiters use middlemen to seek out pregnant women
who, because of poverty or prostitution, might be willing to give up
their children or to sell them. The search is conducted in such places
as markets, doctors’ offices, and even in the hospitals. . . .
38. When a biological mother cannot be persuaded to give up
her child, recruiters often resort to threats or even babystealing. . . .the Special Rapporteur was told of the case of a
prostitute who was pregnant and was threatened with death by the
owner of the bar where she worked if she did not give up her baby
for adoption. The bar owner worked in cooperation with a midwife,
and the pregnant woman was taken to the house of the midwife and
kept there under lock and key with other pregnant prostitutes until
she gave birth. She did not see her baby again. . . .
40. One worrying development. . .is the contracting of women
to bear a child and . . .then register it, take care of it for three months
and then give it up for adoption. . . .The Special Rapporteur was told
about one woman who had given birth to six children, all of whom
she gave up for adoption. . . .
90. The Special Rapporteur is convinced that trafficking of
babies and young children for intercountry adoption exists in
2006] CHILD LAUNDERING 167
226. Report of the Special Rapporteur on the Sale of Children, Child Prostitution and
Child Pornography 5-18, U.N. Comm’n on Human Rights, 56thSess., Provisional Agenda
Item 13, U.N. Doc. E/CN.4/2000/73/Add.2 (2000).
227. See sources cited supra note 224.
228. See sources cited supra note 225.
229. See State Department Guatemala Summary, supra note 223; Hegstrom, Fulton,
et. al, Adopting from Abroad, supra note 224.
230. See sources cited supra note 229.
231. See infra sources cited note 232.
232. See Hague Conference on Private Int’l Law, Status Table 33: Convention of 29
May 1993 on Protection ofChildrenandCo-operation inRespect of Intercountry Adoption
available at http://hcch:e-vision.nl/index
en.php?act=status.comment&csid=767&disp=resdn (last visited Oct. 2, 2006); Taylor,
Adoptions Under Fire in Guatemala, supra note 225; State Department Guatemala
Summary,supra note 223; Important Notice on Guatemalan Adoptions, DEP’TST.July 14,
2003;Important Notice on Guatemalan Adoptions, DEP’TST. Oct.6, 2003;Hannah Wallace,
Guatemala on a large scale.226
Despite this U.N. report, similar press accounts,227 and the actions of
other Western nations in closing off adoptions from Guatemala,228 the United
States government has not closed adoptions from Guatemala. Instead, the
United States government instituted DNA testing, a procedure which had
been used by Canada before that government closed itself to Guatemalan
adoptions.229 This procedure requires mothers relinquishing children to
submit to DNA testing of themselves and the child. DNA testing
understandably cannot apply to abandoned children, where the birth family
is unavailable.230 The requirement of DNA testing for relinquishment may
have reduced the incidence of placing stolen children, but does little to
combat the possibility of mothers being paid to relinquish their child.
Moreover, it may be possible to circumvent the procedure by switching
children after completion of the DNA test.
The controversy over Guatemalan adoptions has engaged that
government at the highest level. Guatemala joined the Hague Convention on
Intercountry Adoption by ascension and tried to implement a new adoption
system with the Convention’s requisite central authority. The Guatemalan
Constitutional Court subsequently held that treaty ascension violated the
Guatemalan Constitution, which allegedly forbade Guatemala to ratify
Conventions in this fashion.231 Guatemala then returned to its notarial system
and apparently does not consider itself bound to the Convention. Some
apparently believe that under international law Guatemala remains a Party
to the Convention. Thus, Guatemala can be viewed as a Hague country in
breach or as a non-Hague country. Some within the United States and
Guatemala applaud Guatemala’s return to the notarial system and complain
that adherence to the Hague Convention had brought adoptions to a
standstill.232 Remaining unsettled is the question of whether the Guatemalan
168 THE WAYNE LAW REVIEW [Vol. 52:113
Update: Guatemala (2003), available at http://www.rainbowkids.com/2003/10/news/
guatopens/chtml (last visited March 31, 2006).
233. See supra note 220 and accompanying text.
234. See, e.g., Rights of the Child in Guatemala, supra note 214, at 40-42.
235. State Department Guatemala Summary, supra note 223.
236. Id.
attorneys who dominate the notarial system should be viewed positively as
facilitating quick adoptions of young infants, or viewed negatively as
profiteering child traffickers.
Guatemala presents the prospect of a poor nation becoming a baby-farm
for the United States. Although the term may be extreme, it is hard to know
how else to view reports of babies being booked from the womb, or even
worse of women becoming pregnant and bearing babies for the purpose of
placing them for intercountry adoption. While it would be possible to view
adoption in Gutemala as a humanitarian act, it seems hard to justify a system
which pays intermediaries in a developing nation $15,000 to $20,000 per
adoption to facilitate adoption from poor and vulnerable mothers.233 These
attorneys appear to possess the political and financial power to create a legal
process bent to their wishes, which grants them exorbitant pay for the
services they render. Even where the children are properly obtained without
being purchased or stolen, the size of these fees makes adoptions from
Guatemala ethically questionable. Guatemala has created one of the most
commercialized and profiteering system of intercountry adoption yet seen.
It is the United States, however, which has enabled (and continues to enable)
this commercialized system to flourish. It is interesting, for example, that
United States citizens pay far more for Guatemalan adoptions than have
citizens of other nations.234 It is, in other words, the willingness of the United
States as a recipient nation to pay these large sums that fuels the
commercialization of adoption.
The United States State Department web page on Guatemalan adoptions
publicly admits that
In some cases . . . children may have been obtained by illegal means,
perhaps even stolen . . . The DHS/ICE office at the U.S. Embassy
requires DNA testing in all cases where the child is released by an
identifiable birth mother . . . because the use of a false birth mother
to release ‘her child’ is the usual method chosen by unscrupulous
operators to create a paper trail for an illegally obtained child.235
The State Department further notes the difficulties created by “the high
incidence of corruption and civil document fraud in Guatemala.”236 The State
Department emphasizes their responsibility to prevent the adoption of “stolen
2006] CHILD LAUNDERING 169
237. Id.
238. Id.
239. Id.
240. Id.
241. Id. (“The Department of State does not assume any responsibility for the quality
of services provided by these private adoption agencies or their employees.”).
242. See Rights of the Child in Guatemala, supra note 214, at 21:
[I]t is necessary to point out the difficulty in obtainingreliable information about
children,”237 but does not explain how they intend to prevent the adoption of
purchased children. Nor does the State Department explore the ethics of
paying $30,000 to receive a child who is relinquished because the parent is
“destitute by Guatemalan standards and cannot provide the child with the
nourishment and shelter necessary for subsistence.”238 Indeed, the State
Department’s approach seems largely to be one of passing on to adoptive
parents the responsibility to evaluate the reliability and ethics of Guatemalan
adoptions, as they in bold print warn:
Neither the U.S. Embassy nor the U.S. Department of State can
assume any responsibility for the professional ability or personal
integrity of Guatemalan attorneys.239
The State Department instead recommends that United States adoptive
parents rely on “referrals from families who have had satisfactory experience
working with a specific attorney.”240 The difficulty of such reliance, of
course, is that adoptive parents usually measure a “satisfactory” adoption
experience by the speed of the adoption and the condition of the child.
Parents usually lack any way of determining whether an infant they adopted
was purchased or stolen, and thus may give high praise to an attorney who
specializes in obtaining children by illicit means. In a similar manner, the
State Department washes its hands of any responsibility for the actions of
private United States agencies hired by adoptive parents.241
It seems likely that the United States government learned from
Cambodia that shutdowns are politically unpopular and has determined not
to repeat that experience. The result is that the United States government has
kept open an adoption process that it knows or reasonably suspects to be
highly corrupt. Given the evidence from Cambodia and India that the normal
United States visa orphan process generally cannot discern stolen or
purchased children, it may be considered helpful that the United States has
added the requirement of DNA testing. However, this one additional process
cannot alone cleanse the system of child laundering. Mothers paid to give up
their children, or even to bear children in order to give them up, can also be
paid to go through the DNA testing process, as well as being paid to deny
being paid.242 The DNA testing process is thus completely inadequate in
170 THE WAYNE LAW REVIEW [Vol. 52:113
the extent to which the biological mother has received a significant economic
benefit for agreeing to surrender her child, precisely since they have been well
trained by the lawyers to always provide the same answer: ‘No money was
received’ or ‘The attorney only provided a little practical assistance.’
243. See STATE DEPARTMENT, Frequently Asked Questions:Intercountry Adoption and
the Hague Convention: Guatemala, available at http://travel.state.gov/family/adoption/
notices/notices_2859.html (last visited Oct. 2, 2006).
244. STATE DEPARTMENT Guatemala Summary, supra note 223.
245. UNICEF, Trafficking and Sexual Exploitation, available at
http://www.unicef.org/protection/index_exploitation.html (last visited Oct. 2, 2006).
246. See Rights of the Child in Guatemala, supra note 214 at 48 (“INTERPOL has
seriously criticized the sector of Guatemalan lawyers that profits from adoptions.”).
relation to child-buying, even if it may be somewhat helpful in screening
cases of stolen children. The truth is that the United States government has
abrogated its responsibility to prevent child laundering of purchased children
from Guatemala. In doing so, the United States government has lent its visa
orphan process for the use of child traffickers as a part of an efficient system
of child laundering.
The future of Guatemala as a sending country is currently in question,
due to the progress of the United States toward ratifying the Hague
Convention on Intercountry Adoption. The State Department appears to be
taking the position that Guatemala is a Hague country in breach of its treaty
obligations, and hence that it would be inappropriate to permit adoptions
from Guatemala once the United States formally ratifies the Convention,
unless Guatemala implements the Convention.243 It will be instructive to see
how this issue is resolved.
It is impossible to know for sure whether the U.N. Special Rapporteur
is correct in her conclusion that most international adoptions in Guatemala
involve illegalities.244 UNICEF’s estimate that “1,000 to 1,500 Guatemalan
babies and children are trafficked each year for adoption by couples in North
America and Europe”245 seems plausible, and may undercount the extent of
the problem. Whatever the exact numbers involved, there is substantial
evidence that the Guatemalan adoption process has been used to create
systematic criminal conspiracies for the laundering of significant numbers
of children: conspiracies which ironically are largely run by attorneys. The
profiteering in the Guatemalan process is undeniable, as the high prices
charged by Guatemalan attorneys are no secret.246 It is a measure of the
tolerance of the United States adoption community for profiteering and
corruption that Guatemala in recent years has maintained a stable position as
the third most significant sending nation for United States adoptions.
2006] CHILD LAUNDERING 171
247. See UNICEF, Innocenti Digest, supra note 3 at 3 (reporting in 1998 that the
United States is foremost receiving nation, receiving “roughly half of all adoptions”); Ethan
B. Kapstein, supra note 8 (noting that by 2001, the United States accounted for 19,237 of
over 34,000 cross-border adoptions, “over half of the world’s total.”)
248. See STATE DEP’T Adoption Statistics, supra note 37.
249. See Optional Protocol to the Convention on the Right of the Child on the Sale of
Children, Child Prostitution and Child Pornography, G.A. Res. 263, U.N. GAOR, 54th
III. REFORMING INTERCOUNTRY ADOPTION: OVERCOMING THE
WEAKNESSES IN THE CURRENT INTERCOUNTRY ADOPTION SYSTEM
Part One of this article documented a substantial degree of child
laundering in the intercountry adoption system. Further, that section
demonstrates that the current intercountry adoption system incentivizes and
legitimates baby-buying and child-stealing, by providing financial incentives
and legal processes which make it profitable to launder purchased and stolen
children through the adoption system. While it remains technically illegal to
purchase and steal children, once such children are laundered through the
adoption system and re-labeled as “orphans” and “adoptees,” such illicit acts
become in significant part legitimated by the legal system.
The purpose of this section is to propose reforms that could substantially
reduce the incidence of child laundering in the intercountry adoption system.
Each subsection identifies a weakness in the current intercountry system that
contributes to child laundering, and then proposes corresponding reforms
that could address that weakness. The weaknesses and reforms discussed
pertain primarily to the United States as a recipient nation, in relationship to
the kinds of developing nations (such as Cambodia, India, and Guatemala)
where child laundering is a significant concern. The reforms proposed could
be adapted to other recipient nations.
The reforms proposed below are directed principally at actions which
could be taken by the United States government. It is therefore important to
indicate the interest of the federal government in reforming intercountry
adoption. The United States is the most signific ant recipient nation in the
intercountry adoption system.247 Currently, over 20,000 children annually are
entering the United States for the purposes of adoption.248 The United States
has a federal interest in ensuring that immigrants who enter the United States
through the visa process do so within the limitations and rules established by
Congress. Thus, federal law criminalizing acts such as visa fraud, and
creating processes for determining the validity of orphan visas, necessarily
represent a federal interest in the integrity of the intercountry adoption
system. Through its ratification of the Optional Protocol on the Sale of
Children, the United States is under a Treaty obligation to combat child
trafficking, explicitly including child trafficking conducted within the
intercountry adoption system.249 Even though the United States has not yet
172 THE WAYNE LAW REVIEW [Vol. 52:113
Sess., Supp. No. 49, U.N. Doc. A/Res/54/263 (2000) (entered into force Jan. 18, 2002);
Office of the High Commissioner for Human Rights, Status of Ratifications ofthe Optional
Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, available at http://www.unhchr.ch/html/
menu2/6/crc/treaties/status-opsc.htm (last visited Oct. 2, 2006); Michael J. Dennis, Newly
Adopted Protocols to the Convention on the Rights of the Child, 94 AM. J. INT’L L. 789
(2000).
250. See HagueConvention Status Table 33,supra note94;Intercountry Adoption Act
of 2000, Pub. L. No. 106-279, 114 Stat 825 (codified as amended in scattered sections of 8
and 42 U.S.C.).
251.Cf. Ethan B. Kapstein,supra note 8 (“our failure to build an effective international
adoption regime is unlikely to dominate the foreign policy agenda . . . it threatens neither
national security nor economic welfare.”)
252. See Trafficking Victim’s Protection Act of 2000, 22 U.S.C. § 7102(8) & (9)
(2005); see also 18 U.S.C. § 1589 (2005).
completed the steps necessary to ratify the Hague Convention on
Intercountry Adoption, its signature of that document and stated intent to
ratify indicates that it supports the Convention’s policy aims, in terms of
combating child trafficking within the intercountry adoption system.250 Thus,
the United States government is under international obligations to prevent
the intercountry adoption system from encouraging and facilitating acts of
baby-buying and child-stealing. The United States government cannot
delegate this responsibility to either state or foreign governments,
particularly once it becomes clear that such abuses are occurring. Certainly
the United States government cannot delegate to any other entity its
responsibility to ensure that its own legal processes are not abused to
legitimate acts of baby-buying or child-stealing. The United States
government is ultimately responsible to ensure that the orphan visa process
is not a child laundering process.
Politically speaking, it is easy to see why intercountry adoption reform
would be a low priority for the federal government. There is little political
constituency for reform of the intercountry adoption system. Victimized birth
families residing in sending nations are not a constituency for United States
politicians and are nearly invisible, even within their own nations. Adoptive
parents complain when adoptions are slowed or delayed, or moratoriums
imposed, but often don’t seem interested in reform of the system. Adult
adoptees frequently have embraced their adoptive identity or else focus on
problems arising from the cross-cultural, cross-racial nature of many
intercountry adoptions; most were adopted as infants and lack any
information that would cause them to focus on child laundering issues.
Intercountry adoption itself is generally a low priority for immigration
authorities, as compared to issues related to security and terrorism or largescale illegal immigration.251 Even federal authorities focused on child
trafficking and children’s rights are directed by federal statute to focus on
trafficking for purposes of sex or labor,252 and thus may choose to ignore the
2006] CHILD LAUNDERING 173
253. Hague Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption, May 29, 1993, 32 I.L.M. 1134 [hereinafter Hague Convention].
254. Intercountry Adoption Act of 2000, Pub. L. No. 106-279, 114 Stat 825, 42 U.S.C.
14901-14954.
255. Proposed Implementing Regulations, 68 Fed. Reg. 54,064 (proposed Sept. 15,
2003)(to be codified at 22 C.F.R. pt. 96)[hereinafter Proposed Hague Regulations].
256. Final Rule, Hague Convention on Intercountry Adoption; Intercountry Adoption
Act of 2000; Accreditation of Agencies;Approval of Persons, 22CFR 96, 97, 98, (Feb. 15th
,
2006), published in Fed.Reg. 8064-8164.
257. Intercountry Adoption Act of 2000,supra note254;ProposedHagueRegulations,
supra note 255; Final Rule, supra note 256, at 8064 (summary).
258. See Hague Convention Status Table 33, supra note 232.
issue of child laundering in the intercountry adoption system.
My argument for reform, in terms of federal authorities, is that reform
of the system in the longer term will avoid time-consuming and embarrassing
situations, as occurred in Cambodia. Rather than operating a visa orphan
system that encourages child laundering and then hiding the federal head in
the sand, it would be more rational to reform the system in such a way as to
avoid future problems. Without reform, the federal authorities will face
recurrent child laundering scandals.
My argument for reform, in terms of the adoption community, is that
cleansing the intercountry adoption system of child laundering is ultimately
pro-adoption. Adoption reform can rescue the adoption system from the
draconian choice between moratoriums and child laundering. An adoption
system chronically ridden with such abuses necessarily faces a risk of
extinction. The tendency of the adoption community to undermine reform,
and excuse and minimize child laundering scandals, constitutes one of the
greatest long-term threats to intercountry adoption.
Currently, the primary vehicle for federal reform of the intercountry
adoption system is contained in the slow-moving effort to ratify the Hague
Convention on Intercountry Adoption.253 This effort has produced the
Intercountry Adoption Act of 2000,254 proposed implementing regulations,255
and final implementing regulations,256 which upon ratification would create
a federally-regulated regimen for “Convention adoptions:” adoptions where
both the recipient nation and the sending nation, or country of origin, had
ratified the Hague Convention. The current Hague implementation process
for the United States therefore would only apply to adoptions where the
sending nation is also a party to the Convention (Hague nation).257
Presently, some of the most significant sending countries have not
ratified the Convention. For example, Russia has signed the Convention but
has not ratified it, while South Korea has neither signed nor ratified the
Convention. China did ratify the Convention effective January 2006, and
India ratified the Convention effective October 2003.258 Guatemala, as noted
above, joined the Convention, but the Constitutional Court of Guatemala
174 THE WAYNE LAW REVIEW [Vol. 52:113
259. SeeTaylor, Adoptions Under Firein Guatemala,supra note232; supra notes 232
& 243 and accompanying text.
260. See HagueConvention Status Table 33, supra note 232;see also supra notes 232-
246 and accompanying text on Guatemala.
261. See U.S. CONST., art. I, § 8, cl. 4.
262. For a helpful analysis of the final Hague regulations,see Ethica,Comments on the
Final Regulations Implementing the Hague Adoption Convention (March 2006), available
at http://www.ethicanet.org/HagueRegComments.pdf [hereinafter cited as Ethica Hague
analysis]. The author has been affiliated in various capacities with Ethica, which is an
organization concerned with promoting ethical adoption practices.
ruled the accession to be unconstitutional. 259 Guatemala then reverted to its
pre-ratification system of intercountry adoption and apparently does not
consider itself bound by the Convention, though they arguably remain bound
as a matter of international law, creating significant ambiguities for its
relationship to the United States.260
There seems little point in constructing a new federal apparatus for
intercountry adoption which fails to cover a significant percentage of such
adoptions. Therefore, Congress should extend most of the new federal role
in intercountry adoption to all such adoptions, not merely those coming from
sending nations that are parties to the Convention. Congress certainly
possesses the authority to regulate and accredit all United States agencies
involved in the immigration of children to the United States, given the
Constitutional mandate for federal authority over immigration.261 The federal
interest in combating child laundering is in no way limited to children
coming from Hague countries. While the procedural rules which assume that
the sending nation will possess a Central Authority or other Hague-mandated
institutions or procedures could be waived for non-Hague sending countries,
most of the Hague regulations are equally applicable and relevant to both
Convention and non-Convention adoptions.
The following proposals therefore build on the proposed Hague
regulations, based on the assumption that most of the Hague regulations
should be applicable to all intercountry adoptions. In addition, the following
proposals expand upon the proposed Hague regulations, seeking to enhance
their efficacy and remove some significant loopholes. At the time this article
was written only the proposed Hague regulations were available, as the Final
Rule had not yet been issued. However, after this article had been
substantially completed and was in the process of editorial revision, the State
Department issued the Final Rule. Although full analysis of the final Hague
regulations will have to await a subsequent article, this article does briefly
address the approach of the final Hague regulations to several of the specific
issues discussed below. Unfortunately, it appears that the weaknesses in the
proposed Hague regulations for the most part remain in the Final Rule,262 and
therefore the following analysis remains highly relevant.
2006] CHILD LAUNDERING 175
263. See supra Part II; Indian Adoption Scandals, supra note 4.
264. See supra Part II; Indian Adoption Scandals, supra note 4; Jeff D. Opdyke,
Adoption’s New Geography, WALL ST.J., Oct. 14, 2003, at D1.
265. Backgrounder, supra note 77.
266. See supra notes 77-102 and accompanying text.
A. Money as the Root of All Evil
1. Weaknesses in the Intercountry Adoption System
Money is the primary motivation in most cases of child laundering in the
intercountry adoption system. The transfer of Western wealth into sending
nations is the primary vulnerability of the intercountry adoption system.
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.263
The current system lacks transparency and accountability as to the how
these funds are spent. This lack of transparency and accountability begins
with agencies in recipient nations, such as the United States, which advertise
adoption fees without making it clear exactly where or how the money is to
be spent. Vague categories such as “foreign fees” or “India fee” obscure
rather than clarify. Required “orphanage donations” increase the amount of
money spent in the sending nation without fulfilling their implied promise
that the funds will be spent on the care of children. This lack of transparency
and accountability then travels to sending nations, driven by the availability
of Western wealth. Individuals and organizations within sending nations who
can provide young, paper-adoptable children and facilitate quick processing
through their national systems sell these “services” to the highest bidder. Socalled “facilitators” may operate on a pure for-profit basis, paying out
necessary sums for everything from child-care to bribery to finders’ fees for
those who locate children, while keeping everything left over. Sending
nation persons and organizations who receive Western adoption fees and
donations often are not required to account in any effective way for the funds
they receive.264
This lack of transparency and accountability is illustrated in the child
laundering problems experienced in Cambodia, India, and Guatemala. In
Cambodia, Lauryn Galindo collected a $3,500 per adoption cash orphanage
donation for some 700-800 adoptions over four years, for a total over $2
million, while apparently spending little if any of the funds on orphanages.265
The intercountry adoption system itself did nothing to discover or prevent
this massive misallocation of funds. It took the rare event of a criminal ICE
investigation to discover and document the fraud.266 In India, Western
agencies provided corrupt Indian agencies with profits of $2,000 to $7,000
176 THE WAYNE LAW REVIEW [Vol. 52:113
267. See Indian Adoption Scandals, supra note 4; supra Part II(D)(2).
268. See id.
269. See supra Part (II)(D)(3).
270. See Proposed Hague Regulations, supra note 255, section 96.40, at 54103.
271. See id., section 96.40(f)(3), at 54103-54104.
272. See id., section 96.34(a), at 54100.
per adoption, providing the incentive for child laundering enterprises.267
Official Indian rules requiring donations to be voluntary and only paid after
arrival of the child in the recipient nation, as well as Indian rules sharply
limiting permissible adoption fees, appear to be routinely violated by even
the better United States agencies. Even after recurrent scandals in India,
recent published reports indicate that the most significant sending orphanage
in the nation is engaged in demanding exorbitant donations and fees while
failing to provide proper nutrition and care for children.268 In Guatemala,
attorneys who charge $15,000 to $20,000 per adoption are not required to
account for their expenses or profits; these large fees dwarf those provided
in other developing nations and constitute a form of profiteering.269
Abusive profiteering and commodification of children would exist
within the intercountry adoption system even if children were obtained
properly from their birth parents, given the lax regulation of money within
the intercountry adoption system. Once profiteering and commodification of
children become normative and permissible in otherwise legitimate
adoptions, the next step toward obtaining children illicitly is almost
inevitable. Once the profit motive is unleashed in the intercountry adoption
system, it becomes very difficult to safeguard children and families from
illicit child laundering. Therefore, child laundering can only be eliminated
from the intercountry adoption system through limitations, accountability,
and transparency of monetary transactions.
2. Reforms and Money
The proposed Hague regulations address adoption fees and make a
reasonable start toward addressing current abusive practices.270 The proposed
regulations require advance disclosure of estimated fees, including written
itemization of costs in terms of categories provided in the regulations.
Agencies must provide “written receipts to the prospective adoptive parents
for fees and expenses paid in the Convention country. . . .”271 The regulations
prohibit agencies from compensating individuals with “incentive fees for
each child placed for adoption or . . . similar contingent fee basis.”272
The final Hague regulations have been criticized for failing to require
sufficient disclosure and transparency for the use of foreign fees, for
continuing to allow unreasonably high compensation to employees or agents
in sending countries, and for providing only illusory protection against
2006] CHILD LAUNDERING 177
273. See Ethica Hague Comments, supra note 262 ; Final Rule, supra note 256 , at
sections 96.34 & 96.40.
274. See Proposed Hague Regulations, supra note 255,section 96.40, at 54103-54104.
275. See id., section 96.34, at 54100.
276. The categories contained in section 96.40(b) represented a good first effort at
contingent fee arrangements..273 Thus, although the proposed regulations at
least initiated some effort at controlling the role of money in the intercountry
adoption system, the Final Rule failed to positively build upon those
beginnings. Thus, it appears that the current version of the Final Rule fails
to provide adequate reforms to control the corruptive role of money in the
intercountry adoption system.
The Hague regulations therefore will need to be strengthened in order to
adequately control the role of money in intercountry adoption. First, Hague
regulations regarding fees274 and compensation275 generally should be applied
to all intercountry adoptions, not simply those between Hague nations. In
addition, the regulations should be expanded in the following ways, in order
to more fully address the corrupting role of money in the current intercountry
adoption system. The following proposals would empower adoptive parents,
the adoption community, and human rights activists to ensure that adoption
fees are reasonable, do not represent illicit profiteering, and minimize
incentives for child laundering.
a. Required Fee Disclosure in Standardized Format
United States agencies and facilitators providing placement services
should be required to disclose the fees and costs of intercountry adoption in
a standardized format to prospective adoptive parents. Since the kinds of
donations and fees required vary from sending nation to sending nation,
based on the laws, regulations, and customs of those nations, the required
format would necessarily vary depending on the sending nation. However,
the broad categories should be similar between nations, and there should be
a standard format for each significant sending nation. The required disclosure
should include all expenses, costs, and required donations, including those
made to foreign partners and facilitators in sending nations.
The federal rules governing disclosure of fees should require the fees and
costs to be broken down into more substantive and detailed categories than
most agencies currently provide. It should no longer be sufficient to charge
an all-encompassing foreign program fee. The standard disclosure format
should distinguish between expenses necessary to the adoption process, and
fees paid for services. Expenses involved in the adoption process should be
clearly itemized. The persons and organizations receiving payment for
services should be defined, as well as the nature of the services, and the
amounts to be paid.276
178 THE WAYNE LAW REVIEW [Vol. 52:113
defining the categories that should be used in such regulations. See Proposed Hague
Regulations, supra note 255, at 54103. In the longer term, the categories will need to be
even more specific, and there should be a separate version adapted to each of the most
significant sending countries.
277. Final Rule, supra note 256, section 96.34(d).
b. Fee and Mandatory Donation Limitations
The United States government should set limits as to permissible
adoption fees and mandatory donations. These limits would vary among
sending nations. United States limitations could be stricter than that of the
sending nation, but should not authorize fees or mandatory donations higher
than that permissible under the law of the sending nation.
A primary purpose of setting limits on fees could be to ensure that any
persons receiving payments are limited to reasonable payment for services.
These limits would be designed to limit illicit profiteering on adoption. The
principle that payments made in association with adoption should be limited
to reasonable payment for services, and should not involve profiteering, is
generally accepted in principle as necessary to prevent adoption from
descending into the illicit commodification of children. Illicit profiteering
can be defined as payments to persons which are beyond a reasonable charge
for services rendered. The standard of reasonableness should be set
according to the locale in which it is rendered. Thus, if an individual is
engaged in social service tasks in a sending nation, they should only receive
amounts consistent with what a social worker within that society would
receive outside of the adoption context. The willingness of Western agencies
and adoptive parents to pay high rates for adoption work should not be
regarded as reasonable market behavior, but rather as a temptation to illicit
profiteering. Indeed, these large payments are largely a product of the way
the adoption system obscures the real uses of adoption fees behind screens
of humanitarian work. Humanitarian work in developing countries should
not be performed at premium or profiteering rates, and there is no reason
adoption should be an exception.
The determination of the Final Rule that fees, wages, and salaries are
reasonable so long as they are within the “norms for compensation within the
intercountry adoption community in that country”277 simply ratifies illicit
profiteering within the intercountry adoption system, contrary to the intent
of the Hague Convention. Thus, under the Final Rule, the unreasonably high
fees paid to Guatemalan attorneys become proper so long as they are
customary in Guatemalan intercountry adoptions, allowing systemic and
wholesale violation of the Convention norm against profiteering in
intercountry adoption. It is very unfortunate that the Final Rule does not
require intercountry adoption fees to be normed against the reasonable cost
of other kinds of social service work.
2006] CHILD LAUNDERING 179
278. This is the rule adopted by the Indian SupremeCourt,but unfortunately it has not
been followed by even mainstream United States agencies. See Indian Adoption Scandals,
supra note 4; at 437, 456-77; supra notes 140-153 and accompanying text. The latest rule
from the Indian government on voluntary donations appears even stricter, but it remains to
be seen how it will be interpreted and enforced. See supra note 145.
Limitations on permissible fees should be enforced in several ways.
First, the schedule of permissible fees/donations should be provided to
prospective adoptive parents during the initial stages of the visa application
process. Second, adoptive parents should be required to sign an undertaking
to keep any payments within permissible limits. Third, adoption agencies
should be required to disclose to the federal government all financial
transactions related to each adoption, as a part of the visa processing. Fourth,
adoptive parents, in order to obtain the final travel documents for the child,
should be required to submit a disclosure of all financial transactions related
to the adoption, and to sign an additional undertaking that they have not
violated the fee limitations.
The schedule of fee limitations will have to take account of the issue of
orphanage donations. The adoption process in some nations include required
donations, and adoptive parents frequently have been required to bring
significant amounts of cash with them to the sending nation. Where a certain
donation is an established part of the adoption process, as in China, such
should be defined as a permitted category of charges. The amounts dictated
by law or custom in the sending nation should be permitted if they are
reasonable, and there are sufficient indications that such donations generally
are used to assist children and families within the sending nation. The fee
schedule should clearly distinguish between the category of “required”
donations, and that of truly elective donations. Where elective orphanage
donations are permissible under the law of the sending nation, they should
not be subject to the limitations for fees and mandatory donations. However,
donations should only be considered to be permissible “voluntary” donations
where adoptive parents are not contractually bound to pay them, and where
payments and commitments to pay are only made after the child arrives in
the United States.278 Obviously, to the degree “elective” donations beyond
established limits are permitted before the child arrives in the United States,
persons in the sending countries can condition their cooperation upon the
giving of such “voluntary” donations, and thus the proposed definition of
voluntary donations is designed to avoid such manipulations.
3. Government Disclosure of Agency Fees/Mandatory Donations
The United States government currently maintains a web page with a
substantial amount of information concerning intercountry adoption,
180 THE WAYNE LAW REVIEW [Vol. 52:113
279. See International Adoption, Department of State, available at
http://travel.state.gov/family/adoption/adoption_485.html (last visited Oct. 2, 2006).
280. Id.
281. On lax state regulation of those involved in adoption, see, e.g., Kim Clark &
Nancy Shute, The Adoption Maze, US News & World Report,March 12, 2001, at 60. This
article quotes a Maryland state adoption agency licensing coordinator as saying that their
response to complaints against adoption agencies regarding money is to “toss ‘em,” since
Maryland regulations don’t address such issues. See also Madelyn Freundlich, supra note
33, at 56 (quotingstatement by former President ofNationalCouncilfor Adoption, that state
regulation of agencies is “virtually meaningless”).
including information on each sending nation.279 This web site should be
expanded to include a data-base on adoption fees. The government could, for
example, list the fees/required donations charged by each agency, for each
sending nation, for a given year. Of course, the data disclosed would in no
way identify members of the adoption triad (birth family, adoptive family,
or adoptee). Agencies lack a sufficient interest in keeping their fee schedules
confidential given the substantial public interest in ensuring that intercountry
adoption does not lead to the commodification of children or child
laundering.280 Further, the publication of this information would make
transparent the relationship between the advertised and actual fees charged
by the agencies and their foreign partners.
B. Ineffective Licensing and Regulation of Adoption Agencies within the
United States
1. The Dangers of Weak Licensing and Regulation of Adoption Agencies
Licensing and regulation of adoption agencies and facilitators involved
in intercountry adoption is surprisingly lax, at least within the United States.
Traditionally, there has been no federal licensing or regulation, leaving
licensing and regulation in the hands of the states. The degree of regulation
varies widely among the states. In many states virtually anyone, regardless
of qualifications, may start an adoption agency involved in intercountry
adoption. In addition, in some states it may be possible to arrange or
facilitate adoptions without being licensed as an agency. Under the current,
decentralized system, persons or agencies losing their licenses in one state
may simply move to another jurisdiction. Even in those states that
theoretically provide a complaint system, it seems to be rare for any action
to be taken against errant agencies. Ironically, under state law there may not
be any clear rule prohibiting a United States agency from placing a
purchased or stolen child.281
The lax licensing and regulation of adoption agencies lends itself to child
2006] CHILD LAUNDERING 181
282. See, e.g., Cross, supra note 70; Part II(D)(1), supra.
laundering, because it permits the field of adoption to become inundated, and
even dominated, by individuals and organizations engaged in market-based
commodification of children. Individuals and organizations whose primary
and motivating activity is intercountry adoption easily descend into the
commodification of children because they concentrate more on fulfilling the
desires of Western adults for children than on meeting the needs of children
and families. Such agencies can concentrate on competing for the business
of prospective adoptive parents by supplying the “service” of speedy
adoption of young, paper-adoptable children. In this race to the bottom,
agencies succeed regardless of whether they provide significant social
service assistance to birth families or orphans remaining in the sending
nation. Indeed, intercountry adoption systems may operate in a manner
completely separate from the social service or other humanitarian systems
operating within the sending nation. Within this market-based system, it can
be normative to take a child from desperate parents who would have kept
their children if they had been offered even minimal assistance, leading to
the absurdity of “humanitarian” efforts that spend tens of thousands of
dollars to divide families that could have been kept intact for a hundred
dollars or less.
The step from such exploitation of the poor to actual baby-buying or
child stealing is shorter and less dramatic than most imagine. Agencies that
stick to the narrow purpose of obtaining young infants quickly for Western
adoptive parents may indeed develop successful systems for this purpose.
These agencies need do no more than find a facilitator or orphanage within
a sending country willing to be their “supplier” of paper-adoptable children.
These market-driven agencies may hide their true nature by boasting of their
assistance to orphans or other humanitarian work—assistance which will cost
them very little given the low cost of legitimate humanitarian work in
developing nations. Thus, even the most corrupt intercountry adoption
agencies can distract from their real methodologies by throwing a few dollars
at humanitarian donations. For example, Galindo and Devin, the convicted
conspirators of the Cambodian scandal, probably did do some humanitarian
work, although they also pocketed much (probably most) of the funds they
collected for humanitarian purposes.282
Agencies truly focused on assistance to children and families in sending
nations, that provide a full range of services to families and children, may be
at a disadvantage within the loosely-regulated world of intercountry
adoption. Thus, agencies that provide care for significant numbers of
children who will not be adopted, provide aid to keep families together,
facilitate domestic adoptions within sending nations, and either operate their
own orphanages or build effective partnerships with legitimate social service
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283. See Ethica Hague Comments, supra note 262, at 1 n. 2 (referring to ethical
adoption agencies as “victims” because of the “race to the bottom” that exists when they
must compete against unethical agencies in an environment of inadequate regulation.)
284. See supra Part II(D).
285. I owe this point to Desiree Smolin, who pointed this out to me in various
conversations over the last several years.
agencies in sending nations, may in fact be at a competitive disadvantage in
the intercountry adoption marketplace. There is a real danger in the adoption
world of bad agencies winning significant or even dominate market share.283
Lax regulation of adoption agencies also makes the adoption system
vulnerable to child laundering by involving inexperienced and credulous
persons ill-equipped to choose reliable partners in sending nations.
Unfortunately, child laundering scandals in Cambodia, India, and Guatemala
suggests that even experienced and respected recipient nation agencies
inadvertently choose partners who source children through baby-buying and
child-stealing.284 This problem is made even worse by a system that invites
virtually anyone to become a placement agency. The entrepreneurial quality
of adoption within the United States invites untrained persons with religious,
humanitarian, or financial motivations to start placement agencies; such
persons can be easily lured into partnering with a foreign facilitator or
orphanage that launders children. Lax licensing and regulation of
intercountry adoption thus leads to a system where the naïve and the
unscrupulous are free to operate, and families suffer.
Intercountry adoption is, in many respects, a professional field without
a profession.285 The subject is quite complex, involving a complex transfer
of children across family, nation, and culture. The issues created by
intercountry adoption are difficult for physicians, lawyers, psychologists,
social workers, and teachers who encounter them, particularly when they
involve older children or children harmed by poor care. Even professionals
within these various fields may be ill-equipped to deal with the specialized
medical, psychological, and educational needs of adoptees and adoptive
families. The issue of constructing an ethical system of intercountry adoption
would challenge an expert in management or development economics. Yet,
there is no profession of intercountry adoption. The professions that seem
most relevant, such as social work, generally have little training in the field,
and professionals from these fields can be just as naïve as lay persons in
relationship to the complexities of intercountry adoption. Unfortunately, this
field without a profession is open to the most unprofessional of persons who
are no more qualified to place a child for adoption than a barber would be to
pilot an airplane.
One of many examples of the problem of lax regulation of adoption
agencies and facilitators is the publicized saga of Mai-Ly Latrace, a
facilitator who has worked with a variety of adoption agencies over a period
2006] CHILD LAUNDERING 183
286. See Julie Pace, In Shadow of Adoption, TAMPA TRIBUNE, August 21, 2005,
Nation/World, at 1. See generally Kit R. Roane, Pitfalls for Parents, U.S. NEWS, June 6,
2005, at 56. For another such example involving Ireland rather than the United States, see
Ann McElhinney &Phelim McAleer, Adoption chief used Vietnam fraudster as a tour guide,
Irish Independent, July 11, 2006.
287. Pace, supra note 286, at 1.
288. Id.
289. Id.
290. Id.
291. Id.
292. Id.
293. Pace, supra note 286 at 1.
294. Id.
295. Id.
296. Id.
of at least ten years.286 For a number of years Latrace facilitated adoptions
from Vietnam.287 In 1995, she was “criminally charged with a breach of trust
after she was caught stockpiling agency clothing and medication in a
personal storage locker,” rather than delivering the items to “orphans in
Vietnam.”288 The adoption agency dropped the charges after she agreed to
counseling and community service.289 Another adoption agency alleges they
gave her $35,000 to open an orphanage in Vietnam after she and her mother
“offered to set up [the] agency’s Vietnam program.”290 The agency claimed
the orphanage was never built; Latrace (and her mother) claim any monies
paid constituted payment for services.291
Several adoptive parents claim
Latrace offered a child for adoption to prospective adoptive parents, and
solicited funds for the child’s medical care, despite the fact that the child had
already been placed for adoption with another family and therefore was no
longer in Vietnam.292 Despite these (and other) charges, there are adoptive
parents who defend Latrace, due to her successful assistance in their
adoptions.293 However, according to a written document, substantiated by
published statements by the press attaché for the Vietnamese embassy,
Latrace was “deported [from Vietnam] for child trafficking for money.”294
These charges indicate that “Latrace illegally paid Vietnamese parents or
other people to give up children for adoption.”295 (Latrace denies that she
was deported, despite the written and verbal confirmation by the Vietnamese
government, and a statement by a U.S. Department of Homeland Security
official indicating that Latrace was refused entry to Vietnam in February
2004).296
One might hope that a woman who had been deported for child
trafficking by a sending nation would not have a future working in
intercountry adoption. However, such is not the case. A Florida attorney,
who compares Latrace to “Mother Teresa,” has established several adoption
agencies over the last two years involving Latrace as a director of the first
184 THE WAYNE LAW REVIEW [Vol. 52:113
297. Id.
298. Id. See also Vietnam Tightens Adoption Controls, supra note 31 (“About two
dozen people, including some government officials, have been jailed in the past two years
for soliciting children from unwed mothers and poor families and falsifying documents for
hundreds of children sold to brokers for foreign adoption. . . .”).
299. Pace, supra note 286 at 1.
300. Id.
301. Id.
302. Id.
303. Id.
304. See Intercountry Adoption Act of 2000, 42 U.S.C. §§14901-54 (2006); Proposed
Hague Regulations, supra note 255; Final Rule, supra note 256; U.S. DEPARTMENT OF
STATE, UPDATE:DESIGNATION OF ACCREDITING ENTITIES (May 2006); U.S. Department of
State, Department of State Selection of Accrediting Entities Under the Intercountry
Adoption Act (March 5, 2005).
agency and paid “consultant” of the successor entity.297 As Vietnam was
closed to United States adoptions for several years due to concerns with
“corruption and trafficking,”298 Latrace appears to have been given
substantial responsibility for the Guatemala program of this Florida
agency.299 The matter has been investigated by Florida officials who required
certain background checks to be conducted. However, the investigation (as
of August 2005) is closed. The Florida spokesperson noted that “Florida . . .
does not regulate international adoption consultants or require them to have
licenses.”300 Further, background checks are run only “on the state and
national levels,” so the State has no way of “knowing whether there were
problems in other countries.”301
This story of a deported child trafficker moving her adoption work from
Vietnam (which closed itself largely due to corruption and trafficking
concerns)302 to Guatemala (the focus of highly publicized international
concerns about child laundering)303
, aptly illustrates the gaps in the current
regulatory regimen. Despite the many layers of regulation and bureaucracy
involved in international adoption, there does not seem to be any state or
federal offic ial who is fully responsible to ensure that only agencies and
persons with expertise and integrity place children for international adoption.
2. Reforming the Licensure of Adoption Agencies
Current proposals for implementation of the Hague Convention on
Intercountry Adoption include a federal role for licensing placement agencies
involved in Convention adoptions.304 The State Department has been
designated as the required “Central Authority” responsible for carrying out
Hague obligations. However, under current proposals the State Department
would delegate its accrediting responsibilities to private or State accrediting
entities. Proposed federal regulations would provide some degree of
guidance as to the standards to be applied to adoption agencies. The primary
2006] CHILD LAUNDERING 185
305. See id.
306. See Proposed Hague Regulations, supra note 255, § 96.6.
accrediting entity is likely to be the Council on Accreditation (COA), and the
primary methodology likely to be one of peer accreditation.305
There are reasons to be concerned with the approach to Hague
implementation proposed by the federal government. Difficulties begin with
a perceived lack of State Department enthusiasm for its assigned role as
Central Authority. Intercountry adoption can easily be a kind of orphan
within the federal bureaucracy, as it demands special attention and presents
intricate difficulties and yet has a lower priority than related federal tasks
pertaining to national security, immigration, human rights, and foreign
relations. The delegation solution to this dilemma is an understandable
response. However, it is difficult to see how private or state government
entities can effectively investigate child laundering or other abusive adoption
practices, particularly given the need to send experienced criminal
investigators into foreign countries. Further, the peer-review methodology
adopted is likely to be ineffective if the current standards and practices of the
intercountry adoption system are themselves in need of change. Child
laundering is not primarily the result of a few bad agencies in the West, but
rather is a systemic problem that extends to adoptions arranged by
respectable and well-intentioned Western agencies. Under these
circumstances, there is a danger that a peer-review method of accreditation
and review will simply ratify practices that systematically, if inadvertently,
facilitate child laundering.
Despite the weaknesses of current proposals to federalize accreditation
of intercountry adoption agencies, the Hague implementation process does
point in the right direction. The disparate regulations of state governments
are insufficient to protect the federal interests at stake in the intercountry
adoption process. Federal accreditation of United States agencies that place
children from other countries into homes in the United States is a useful step
toward the protection of legitimate federal concerns. In order to render the
Hague implementation process effective, however, it will be necessary to
extend its principles to all intercountry adoptions.
The principal subjects to be addressed by federal accreditation standards
are well represented in the proposed Hague regulations, and include the
following: (1) Required liability insurance; (2) Education and training of
agency personnel; (3) Complaint Systems; and (4) Record-Keeping and
Reporting Systems.306
Full discussion of agency accreditation standards would require an
article of its own; it seems useful here to briefly discuss only the insurance
186 THE WAYNE LAW REVIEW [Vol. 52:113
307. Public comments to the proposed regulations, including many from agencies, are
available on the State Department web site. See United States Department of
State—Adoption, http://travel.state.gov/family/adoption/implementation/implementation
_1519.html. [hereinafter Public Comments] (last visited Oct. 2, 2006). Even Holt, which
calls itself the “oldest and largest international adoption agency in the country,” and which
says it maintains liability insurance, objects to the regulation. See id.
308. See id. For a useful study of intercountry adoption and insurance, see Mary Joan
McNamara, Memorandum:Intercountry Adoption Project: Insurance for Adoption Service
Providers: Costs and Limits of Liability (2005), available at http://travel.state.gov/
pdf/redacted_checked_insurance_report.pdf (last visited Oct. 2, 2006).
309. See Corbett, supra note 71, at 5.
310. See Jeff D. Opdyke, Adoption’s New Geography, WALL ST.J., Oct. 14, 2003, at
D1.
and complaint issues.
Adoption agencies objected to the proposed Hague regulation standard
of a minimum one million dollars in liability insurance.307 Apparently,
liability insurance for intercountry adoption agencies is becoming both more
expensive and more difficult to secure. 308 Intercountry adoption agencies
seem to be missing the message of such difficulties. An industry which
habitually tolerates incompetence may indeed find its insurability waning.
It is likely that the industry’s insurance problem is largely due to low
standards of competence and performance, and not merely to the litigious
nature of our society, nor to the inherent risks in intercountry adoption. Far
too many agencies build their intercountry adoption programs in the slipshod
method described by one adoption reform advocate. “They go to these
countries, and they hire any Tom, Dick or Harry. . . .Whether it’s the trash
man or a schoolteacher, they hire whoever can get the most babies for them.
It’s money, money, money.”309
A requirement of liability insurance hopefully would require the
adoption industry, as a whole, to maintain standards of practice that will
render the practice of intercountry adoption an insurable risk.
The problem of an adequate complaint system is highlighted by a Wall
Street Journal claim that “most of the biggest” agencies “include clauses in
their contracts that impose gag orders so that disgruntled parents can’t
publicize their gripes without facing fines.”310 Such gag orders should be
rendered illegal under federal regulations. In addition, there should be a
mechanism for bringing complaints directly to the attention of authorities,
and the authorities should respond to credible complaints with appropriate
investigation and action. Thus, the federal government should not attempt to
delegate its investigative role, as the private “acc rediting entities” are not
suited to the investigative function, particularly when critical events occur
in foreign countries. Complaints and investigations are critical to the
2006] CHILD LAUNDERING 187
311. Final Rule, supra note 256, section 96.33(h).
312. Final Rule, supra note 256, section 96.69.
313. See supra notes 70, 77-81, 252 and accompanying text.
314. See supra notes 77-81 and accompanying text.
adoption system because they provide necessary feedback to a system that
too often seeks to censor and repress any “bad news” about adoption.
Both the insurance and complaint issues relate to the need for adoption
agencies to meet standards beyond those currently accepted within the
adoption community. The need to insure against risk and respond to
complaints and investigations provides a reality check much needed in the
adoption community, which is enthralled to its own mythology of the purity
and overriding goodness of adoption.
The approach of the Final Hague Rule to the insurance and complaint
issues is a helpful step toward building accountability into the intercountry
adoption system. The Final Rule requires a minimum of $1,000,000
aggregate professional liability insurance,311 and establishes a complaint
registry open both to parties to an adoption and also to others with relevant
information.312
C. Child Laundering As a Crime
1. The Lack of a Child Trafficking or Child Laundering Criminal
Prohibition Breaches the Treaty Obligations of the United States and
Weakens the Intercountry Adoption System
Currently, child laundering as described in this article is not, as such, a
crime under federal law. More particularly, the federal crime of child
trafficking is limited to the sale of children for purposes of sex or labor and
thus does not include baby-buying for purposes of adoption.313 In the
Cambodian adoption scandal, The United States government obtained
convictions for visa fraud, money laundering and structuring, and issued a
press release indicating that the conspiracy had also involved the crimes of
wire fraud, mail fraud, tax fraud, and violations of the Foreign Corrupt
Practices Act.314 Some may argue that the capacity of the government to
criminalize child laundering or child trafficking under other federal crimes
indicates that there is no need to define a new federal crime in this area.
However, the lack of a federal crime explicitly pertaining to buying or
stealing children for purposes of adoption is a significant gap for several
reasons.
188 THE WAYNE LAW REVIEW [Vol. 52:113
315. Optional Protocol to the Convention on the Right of the Child on the Sale of
Children,Child Prostitution andChildPornography,G.A. Res. 263, U.N. GAOR, 54th Sess.,
Supp. No. 49, U.N. Doc. A/RES/54/263 (Jan. 18, 2002) [hereinafter OP-CRC].
316. Id., art. 3(1)(ii).
317. Id., art. 3(3)
318. Id., art. 3(2).
319. See generally 42 U.S.C. §§ 14901-54.
320. Id. at § 14944.
a. The Lack of a Child Trafficking or Child Laundering Criminal
Prohibition Breaches the Treaty Obligations of the United States
The United States is obligated under international law, as a Party to the
Optional Protocol (Sale of Children),315 to enforce a criminal or penal statute
pertaining to: “Improperly inducing consent, as an intermediary, for the
adoption of a child in violation of applicable international legal instruments
on adoption.”316 Such offenses must be “punishable by appropriate penalties
that take into account their grave nature.”317 In addition, such provisions
should apply to “an attempt to commit . . . these acts and to complicity or
participation . . . .”318
The capacity of the government to punish such acts under crimes such
as visa fraud or mail fraud does not meet the international obligations of the
United States. Crimes such as visa fraud and money laundering are not
designed to punish or deter the kinds of wrongs involved in baby-buying.
The fact that child laundering conspiracies commit other crimes or wrongs
does not satisfy the obligation of the United States to have crimes that name
and punish the essential wrongs involved in child-buying for purposes of
adoption.
The primary effort made by the United States government to meet this
Treaty Obligation is a provision in the Intercountry Adoption Act of 2000,
which is designed to guide the United States toward ratification of the Hague
Convention.319 This Act provides criminal and civil penalties for any person
who:
(2) makes a false or fraudulent statement, or misrepresentation, with
respect to a material fact, or offers, gives, solicits, or accepts
inducement by way of compensation, intended to influence or affect
in the United States or a foreign country—
. . . . (B) the relinquishment of parental rights or the giving of
parental consent relating to the adoption of a child in a case subject
to the Convention.320
2006] CHILD LAUNDERING 189
321. Id.
322. See Executive Report of the Committee on Foreign Relations, S. Re. No. 107-4,
at 2 (2002). The Senate’s interpretation of the phrase “applicable international legal
instruments” as used in Article 3(1)(c)(ii) and Article 3(5) of the Optional Protocol (Sale of
Children is reflected in its understanding that the phraserefersto the Hague Convention on
Intercountry Adoption. See OP-CRC, supra note 315, at art. 3(5)(A).
The United States is not a party to the HagueConvention, but expectsto become
a party. Accordingly, untilsuch time as the United States becomes a party to the
Hague Convention, it understands that it is not obligated to criminalize conduct
prescribed by Articles 3(1)(a)(ii) of the Protocol or to take all appropriate legal
and administrative measures required by Article 3(5) of the Protocol. See id. at
art. 3(5)(B).
The placement of this limitation of obligation as an understanding, rather than a reservation,
its deferral of the obligations until Hague Convention ratification, and then Congress’
implementing provision in the Intercountry Adoption Act, which even after Hague
ratification limits the criminal provision to Convention Adoptions, all indicate that the
United States government is employing this very limited interpretation of its obligations
under the Optional Protocol.
The same penalties apply to any person who “engages another person as an
agent, whether in the United States or in a foreign country, who in the course
of that agency” takes the prohibited actions.321
This provision would constitute a good-faith effort to meet the treaty
obligations of the United States, except for two limitations: (1) The provision
will not be effective until and unless the United States ratifies the Hague
Convention, leaving it inapplicable for a significant period of time; and (2)
even after Hague ratification, the provision only applies to cases where the
sending nation was also a Hague country. As noted above, a significant
number of adoptees come from nations that have not ratified the Hague
Convention.
The United States government may consider itself in conformity to its
obligations under the Optional Protocol (Sale of Children), by narrowly
reading that Treaty’s obligations to criminalize the sale of children in the
context of adoption. The United States government appears to read the
Optional Protocol (Sale of Children), as only obligating ratifying states to
criminalize and combat child trafficking in those adoptions that are literally
within the procedural scope of the Hague Convention on Intercountry
Adoption. Under this interpretation, the obligations in the Optional Protocol
to criminalize and act against the sale of children in intercountry adoption
only attach where both sending and receiving country have ratified the
Hague Convention on intercountry adoption.322 A better way of interpreting
the Optional Protocol, however, would be that its invocation of “applicable
legal instruments on adoption,” while referring to the Hague Convention, is
simply a way of applying the standards of the Hague Convention to the
190 THE WAYNE LAW REVIEW [Vol. 52:113
323. I would argue that the obligation of state parties to forbid and combat child
trafficking in adoption constitutes a norm of customary international law. Given that the
subject is addressed in the CRC, which is ratified by every nation except the United States
and Somalia, and that even the United States in its orphan visa regulations forbids such as
a regulatory matter, it would seem that the international community, including the United
States, has recognized an obligation toprevent adoption from beingused as ameans of child
trafficking.
324. See OP-CRC, supra note 315.
question of birth family consent to adoption, rather than a requirement that
the Hague Convention be literally applicable. It seems unnecessarily stingy,
in the context of a treaty on child trafficking, to act as though the standards
against buying children for adoption are an arbitrary form of positive law
that only apply to nations that choose to ratify the Hague Convention on
Intercountry Adoption. While nations may legitimately choose not to ratify
the Hague Convention on Intercountry Adoption for a variety of reasons,
including a distrust of its procedural devices for combating child trafficking
and facilitating adoptions, the Hague Convention’s fundamental requirement
of birth family consent constitute settled international standards applicable
regardless of ratification. It is therefore wrong to regard the Optional
Protocol’s obligations to criminalize child trafficking in adoption as
contingent on both sending and receiving nation ratifying the Hague
Convention on Intercountry Adoption.323
Therefore, the limited criminal prohibition found in the Intercountry
Adoption Act will not satisfy the treaty obligations of the United States, even
after Hague ratification. The Optional Protocol on Sale of Children is not
limited in its concerns to child trafficking in Hague countries, but rather
requires that a criminal prohibition exist that is applicable to all sending and
recipient nations.324 Therefore the United States is obligated, under
international law, to criminalize the sale of children in all intercountry
adoptions, not merely Hague Convention adoptions.
b. The Absence of a Criminal Prohibition of Child Trafficking or
Child Laundering Weakens the Intercountry Adoption System
Adoptive parents and agencies have a vested interested in minimizing the
significance and extent of adoption scandals. The adoption community tends
to perceive adoption as an overriding good that justifies a certain measure of
otherwise questionable conduct, including bribery and the submission of
inaccurate paperwork. Under these circumstances, when individuals such as
Lauryn Galindo, the principal figure in the Cambodian adoption scandal, are
prosecuted for wrongs such as visa fraud, it is easy for the adoption
2006] CHILD LAUNDERING 191
325. See Cross, supra note 70; Part II(D)(1), supra..
326. See U.S. Families Learn Truth About Adopted Cambodian Children, supra note
74.
327. Id.
community to misunderstand the nature of the wrong. Based on the desire to
minimize the significance of scandals and a certain measure of tolerance for
otherwise illicit conduct, it is easy for the adoption community to
misunderstand events like the Cambodian adoption scandal as overzealous
federal prosecution of good people who were sloppy in their paperwork or
skirted legal limits to save and help children.
The inability of federal prosecutors to charge Galindo with child
trafficking under these circumstances was unfortunate, and significantly
delayed the time when many in the adoption community would face the real
significance of that scandal. Galindo was not merely someone who falsified
paperwork so children could enter the United States; Galindo, according to
the government, was someone who organized a criminal conspiracy to
systematically buy babies from vulnerable families.325 However, the lack of
an applicable child trafficking crime allowed Galindo, even after her guilty
plea, to publicly insist that she “was not involved in trafficking children.”326
Indeed, Galindo minimized her wrongs to “paperwork errors,” stating that
“my motivation was pure in helping these children.”327 As more information
about the government’s case has publicly emerged, it has been harder for the
adoption community to defend her actions; however, too many maintained
their credulous stand for far too long.
The presence of a federal criminal prohibition of child trafficking for
purposes of adoption would send the right message as to the nature of the
wrongs involved in child laundering. This message is as much needed by the
federal authorities as by the public. The crime of “visa fraud” as applied to
child laundering scandals is confusing because it focuses on the wrong of the
child entering the United States—a legal wrong that can seem ethically right
for those transfixed with the good that can come of the child’s adoption into
an American family. The term child trafficking names more directly the harm
that has been done, as children have been made into articles of commerce,
and bought and sold for profit. A federal prosecutor or government
bureaucrat would likely consider it a higher priority to pursue a child
trafficking case than a visa fraud case.
Both the federal government and the adoption community would benefit
from a certain measure of education as to harms done to all members of the
adoption triad (birth family, adoptee, and adoptive family) in child
laundering schemes. Those harms are not well described by the crime of
“visa fraud,” however applicable that crime might be legally. There is a
192 THE WAYNE LAW REVIEW [Vol. 52:113
328. See 42 U.S.C. §§ 14944; supra notes 319-21 and accompanying text.
329. Id.
330. See OP-CRC, supra note 315.
331. See supra notes 187-94 and accompanying text.
332. See OP-CRC, supra note 315.
certain measure of educational value from calling something by its rightful
name.
2. The United States Congress Should Enact a Modified Version of the
Criminal Prohibitions of the Intercountry Adoption Act Pertaining to ChildBuying or Child-Stealing
As noted above, the Intercountry Adoption Act has language providing
criminal and civil penalties for obtaining children through misrepresentations
or monetary inducement, but the Act is not effective until the United States
ratifies the Hague Convention on Intercountry Adoption,328
and even then
will only apply to children adopted from Hague countries.329 The simplest
and most logical reform in this area would be for Congress to immediately
apply these provisions to all intercountry adoptions. This Congressional
action would move the United States toward compliance with the Optional
Protocol (Sale of Children), and allow United States prosecutors to bring
appropriate charges in any future child laundering scandal.330
It would be helpful if the language used in the Intercountry Adoption Act
were extended, as it presently seems to apply only to obtaining children from
relinquishing or consenting family members through fraud or inducement.
Thus, if a child laundering conspiracy were to kidnap children from
hospitals, homes, or streets, and then sell them to adoption agencies, as has
been claimed in Tamil Nadu, India,331 the literal language of the Act might
be inapplicable. This weakness in the language of the Act may stem in part
from a similar weakness in the language of the Optional Protocol (Sale of
Children),332 but it is not necessary for United States law to follow the flaws
of the Treaty. Certainly no one can persuasively argue that the criminal law
should fail to punish kidnaping children from their families for purposes of
profiting from adoptive placements.
D. See No Evil, Hear No Evil: The Problem of United States Agency
Irresponsibility
1. United States Agencies: Incentivizing Irresponsibility
United States adoption agencies play a pivotal role in the intercountry
2006] CHILD LAUNDERING 193
333.See,e.g., Testimony of Cindy Freidmutter, Executive Director, EvanB.Donaldson
Institute, House Committee on International Relations, May 22, 2002, available at
http://www.adoptioninstitute.org/policy/hagueregs.html (15% of 1600 international adoptive
parents surveyed stated their agencies withheld information, or gave inaccurate information,
about the child) (last visited Oct. 2, 2006).
334. See, e.g., Opdyke,supra note310, at D1 (“Currently, agencies aren’t responsible
for their in-country contacts . . . .”).
adoption system, as they establish the crucial connection between
prospective adoptive parents in the United States and orphanages and
facilitators operating in foreign countries. Prospective adoptive parents rely
on United States placement agencies to partner with foreign orphanages and
facilitators who are reliable and ethical. It is the role of United States
placement agencies, working with their foreign partners, to identify children
eligible for adoption and immigration to the United States, and place them
in suitable adoptive homes. Prospective adoptive parents also look to their
placement agencies to supply them with accurate information about the child,
including the child’s medic al condition, age, psychological condition, and
the presence of any disabilities, so they can determine whether to accept a
particular placement.
To a remarkable degree, United States placement agencies seek to avoid
accountability for their role in intercountry adoption. The most common
difficulty noticed by adoptive parents appears to be inaccurate information
about the child, as many children appear to have undisclosed medical
conditions or handicaps, or are much older than their listed age.333 Since most
cases of child laundering are never discovered by adoptive parents, this
complaint is less common, but the reaction of agencies is the same: they seek
to avoid responsibility for their own involvement in the placement of
purchased or stolen children.
United States adoption agencies have several means of avoiding legal
responsibility or accountability. First, United States agencies view it as the
task of their foreign partners to determine the eligibility of children for
adoption, and to evaluate and communicate the condition of the children they
place. When these critical tasks are intentionally or negligently mishandled,
as in the case of child laundering, the United States agencies seek to pass off
all responsibility to the foreign partner. The net effect in most cases, of
course, is to leave adoptive parents with no recourse, as United States
adoptive parents generally are not in a position to hold an orphanage or
facilitator living in a sending nation accountable. Thus, United States
agencies seem to take the position that they have no legal responsibility for
the acts of the agencies, orphanages, facilitators, and persons with whom
they partner.334
194 THE WAYNE LAW REVIEW [Vol. 52:113
335. See, e.g., supra notes 113-14 and accompanyingtext (discussingfailure of orphan
Second, United States agencies are known to include broad waivers of
liability in their contracts with adoptive parents. Such waivers of liability are
designed to allow United States agencies to avoid accountability for their
failures. The basic message of these contracts is that intercountry adoption
is inherently risky and hence agencies are not responsible when things go
wrong; unfortunately, their effect is to excuse chronic negligence and failure
of due diligence on the part of adoption agencies.
United States adoption agencies thus send double messages to their
clients. On the one hand, the agencies seek to reassure prospective adoptive
parents that they can be relied upon to identify suitable children for adoption,
choose ethical and reliable foreign partners, and provide accurate and
relevant information. On the other hand, United States adoption agencies
seek to avoid all accountability by delegating to foreign partners most of the
critical tasks of identifying and evaluating children for adoption, disclaiming
responsibility for all acts and failures of those foreign partners, and then
disclaiming any remaining liability through broad contractual waivers of
liability. Coupled with the tendency of United States agencies to be naively
(and perhaps sometimes intentionally) trusting and credulous, and minimize
or ignore existing evidence of abusive adoption practices, and agencies have
developed an effective means of foisting the results of their own
irresponsibility on others.
For purposes of this article, the role of United States agency
irresponsibility in relationship to child laundering is critical. Currently, the
intercountry adoption system provides an incentive for United States
agencies to distance themselves from activity and responsibility in relation
to the critical roles of ensuring that children placed have been legitimately
obtained from birth families. The system financially rewards adoption
agencies that partner with those who can quickly obtain and process young
infants for adoption, regardless of whether those foreign partners buy or steal
those children. In effect, the adoption system rewards adoption agencies for
willful ignorance of their role in child laundering. It can hardly be surprising
when adoption agencies fail to exercise care and diligence to avoid child
laundering when they perceive no legal responsibility.
Given United States agency irresponsibility, child laundering becomes
the perfect crime. Foreign nationals working in sending countries often can
buy or steal children with relative impunity, given their capacity to escape
detection or punishment, due to weak and corruptible regulatory, judicial,
and enforcement mechanisms in their nations. The orphan visa process
generally has proven incapable of identifying most laundered children.335
2006] CHILD LAUNDERING 195
visa process in Cambodia, even after disclosure of the scandal to the government).
336. See Proposed Hague Regulations, supra note 255, § 96.39(d)
337. See Public Comments, supra note 307.
338. Id.
339. See id. (quoting Howard M. Cooper, Enforcement of Contractual Release and
Hold Harmless Language in Wrongful Adoption Cases, BOSTON B.J., May 2000 at 43).
United States agencies are rewarded for maintaining a stance of willful
ignorance regarding how their foreign partners obtain and process the
children through their national systems, and take no responsibility in the
cases that come to light. Adoptive parents are unlikely to discover child
laundering cases, and when they do they may value keeping “their child”
more highly than reporting the matter to the government. Under these
circumstances, child laundering conspiracies can easily embed themselves
within the intercountry adoption system.
2. Incentivizing Responsible Action: Regulating Liability Waivers
The proposed Hague regulations do not permit agencies to require “a
blanket waiver of liability in connection with the provision of adoption
services in Convention cases.”336 Interestingly, even a premier agency such
as Holt, while claiming it does not include blanket waivers in its contracts,
supports the capacity of agencies to waive liability for the most significant
risks of intercountry adoption.337 Thus, it is “Holt’s current practice to advise
its clients of the many risks inherent in international adoption and require
clients to partner with Holt by accepting the known and identified risks.”338
Holt even argues that “absent an ability to require prospective adoptive
parents to . . . voluntarily accept the known risks, agencies may be precluded
from their critical mission of finding homes for children.”339
Holt’s public comments do not clearly identify the specific risks which
adoptive parents should be required to waive. There are some risks, such as
the possibility that a country may close or a particular child die in care, that
are intrinsic to intercountry adoption and generally beyond the control of the
agencies. On the other hand, it is unreasonable for agencies to waive the risk
that the children they offer for adoption may be laundered children who were
stolen or purchased from their birth parents. To the degree that Holt or other
agencies would argue that child laundering is a “known” risk of intercountry
adoption that must be voluntarily accepted by adoptive parents, they would
be conceding this article’s argument that child laundering has became a
serious problem within the intercountry adoption system. To the degree that
agencies argue that child laundering is insignificant and rare, they should not
be overly concerned with waiving liability as to such an event. In either case,
196 THE WAYNE LAW REVIEW [Vol. 52:113
340. See FinalRule,supra note256,section 96.39(d). The State Department responses
to public comments and explanations are found at 8068 & 8096.
341. See id. at 8068.
342. Id.
it is unethical and unreasonable to ask adoptive parents to accept such a risk
as a normal part of adoption. This is particularly the case when the
customary practices of United States agencies contribute (even if
unintentionally) to the incidence of child laundering. Adoption agencies
require legal rules that give them incentives to avoid child laundering, rather
than legal rules that create incentives for them to look the other way as their
partners in sending countries engage in child trafficking. Certainly adoption
agencies are in a better position than prospective adoptive parents to
minimize the risks of child laundering, and thus the risk should be left with
the agency rather than with the parents.
Thus, the federal ban on blanket waivers in the proposed Hague
regulations should have been included in the Final Rule. Indeed, bans on
blanket waivers, while helpful, are insufficient; the Hague rules should also
identify particular risks that cannot be waived by agency contract. The risks
of child laundering, child buying, and child stealing should be among the
risks which adoption agencies cannot ask their clients to waive, whether in
a blanket or partial waiver of liability.
Unfortunately, the Final Rule eliminated the ban on blanket waivers in
the proposed regulations, apparently in response to agency objections. The
Final Hague regulations instead require that waivers of liability comply with
“applicable State law” and are “limited and specific, based on risks that have
been discussed and explained to the client in the adoption services
contract.”340 This language is to some degree ambiguous in relationship to
the blanket waiver issue, an ambiguity which stems from an underlying
ambiguity as to the definition of a blanket waiver. On the one hand, the State
Department clearly states: “We concluded that a standard prohibiting blanket
waivers is not warranted . . . . ,” and notes that the Final Rule “defers to the
adoption service provider’s own assessment of risks and benefits in asking
a client to sign a waiver.”
341 On the other hand, the State Department
purports to address “the major concerns about extremely broad waivers that
exempt all conduct.”342 The implication is that a waiver that is “limited and
specific” could not be, in effect, a blanket waiver. Thus, the State
Department is seeking to have it both ways, claiming on the one hand not to
ban blanket waivers by dropping the proposed prohibition, while claiming
on the other hand to have addressed the “major concerns” about overly broad
waivers of liability.
It will be interesting to see whether agencies, as a matter of practice, list
2006] CHILD LAUNDERING 197
343. Hague Convention, supra note 253, at art. 1(b)(listing objects of the Treaty).
344. See Proposed HagueRegulations,supra note 255, sections 96.14(d), 96.46(b)(9),
96.46(c) .
345. See PublicComments,supra note307; Opdyke,supra note310, at D1 (suggesting
that under proposed regulations consumers benefit from new protection whereby agencies
become responsible for “the people they hire” in sending countries).
346. Proposed Hague Regulations, supra note 255, § 96.46(b)(9), 96.46(c).
347. Id. at section 96.14(d).
348. See Hague Convention on Intercountry Adoption,supra note 253. There may be
the risks that children have been purchased or stolen in contractual waiver.
Under the Final Rule, contractual waiver language that does not specifically
address the risk of stolen/purchased/laundered children should be ineffective
to waive liability stemming from those wrongs. It will also be interesting to
see whether state courts will, as a matter of public policy, permit agencies to
waive the risk that children have been illicitly stolen or purchased from their
birth families. Whatever happens with this issue, it is unfortunate that the
Federal government, charged under the Hague Convention with preventing
“the abduction, the sale of, or traffic in children” in the intercountry adoption
system,343 has not taken a firm and specific stand on this question.
3. Incentivizing Responsible Action: United States Agency Liability for
the Acts of Their Foreign Partners
The proposed Hague regulations specifically address the critical issue of
United States agency legal accountability for the acts of their foreign
partners.344 Ironically, these provisions have been broadly misunderstood as
providing for a significant broadening of agency responsibility.345 In fact, the
proposed regulations are a classic instance of the “exception” swallowing the
rule, or taking away with one hand what one has given with the other.
On the one hand, the proposed rules require United States agencies to
assume broad liability for “supervised providers in other Convention
countries.”346 On the other hand, the proposed rules state that United States
placement agencies will not be responsible for the acts of foreign partners
who are either governmental bodies, or accredited within the sending
country.347 Hence, under the proposed regulations United States agencies will
only be liable for their non-governmental, non-accredited foreign partners.
The rule is probably directed at the abusive practices of many unaccredited
“facilitators” who operated within sending countries. However, the agency
practice of hiring unaccredited facilitators would be largely irrelevant to
Hague adoptions because the Hague Convention generally requires all
significant functions within sending countries to be performed by the
government or by government-accredited entities or persons.348 Hence, the
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some ambiguity on the critical question of obtaining birth parent consents. One
interpretation of the Treaty would permit non-accredited entities to oversee or receive such
consents so long as either the Central Authority or accredited entities ensure the validity of
those consents. Nonetheless, one would presume that in the ordinary case those regularly
entrusted with receiving consents would be accredited entities/persons.
349. See id.
350. See Indian Adoption Scandals, supra note 4, at 450-62.
351. Kapstein, supra note 8, at 116.
pattern in Hague countries will be for United States agencies to partner with
accredited or governmental foreign partners, as the Treaty would forbid
unaccredited freelance facilitators from playing any signific ant role. 349
Indeed, the Hague system would likely result in many of these previously
unaccredited “facilitators” seeking official recognition within their sending
nations as accredited persons or organizations.
Therefore, since United States agencies in Hague adoptions will be
partnering with accredited foreign partners, the primary effect of the
proposed regulations is to free United States agencies from any
accountability for the actions of those foreign partners. Unfortunately, the
mere fact that these foreign partners will be accredited is of little help in
combating child laundering and corruption. In India, for example, it has been
possible for child traffickers to become accredited (and re-accredited) by the
State and Central governments. 350 Ethan Kapstein in Foreign Affairs aptly
summarized the fatal flaw of Hague Convention reliance on sending nation
regulation:
Despite its contributions, however, the Hague Convention regime
does not, and cannot, tackle systemic corruption, which is likely to
worsen as the trade in foreign-born children increases. One of the
convention’s limitations is precisely the discretion it leave states to
regulate their own adoption networks; “home country control” does
little to curb the corruption that is endemic in some places.351
Although the Hague Convention itself may rely on “home country
control,” it does not require the United States government to do so. The
United States government is not required to allow its immigration and visa
processes to be systematically used for child laundering merely because
some child traffickers are able to become “accredited” within some Hague
sending nations. Among the tools which the United States can exercise to
combat child laundering is the adoption of a legal rule which holds
accredited United States agencies responsible for the acts of their foreign
partners, whether accredited or not. I have elsewhere suggested at length how
2006] CHILD LAUNDERING 199
352. See David M. Smolin, Comments to regulations implementing the 1993 Hague
Convention on Protection of Children and Cooperation in Respect ofIntercountryAdoption,
November 5, 2003, available at http://travel.state.gov/family/adoption/implementation/
implementation_1519.html.
353. See id; cf. Proposed Hague Regulations, supra note 255.
354. See Final Rule, supra note 256, at 8066, 8068.
355. See id. at pg. 8067.
356. Final Rule, supra note 256, sections 96.14(c)(I), 96.46(c).
357. Id. at 96.46(c).
the proposed Hague regulations could be modified to hold United States
agencies responsible, in variable and reasonable ways, for the acts of their
foreign partners.352 The proposed regulations should create liability for the
failure of United States agencies to exercise due diligence in their selection
of and use of foreign partners, as well as require agencies to report
reasonable suspicion of illicit conduct to both the United States government
and to affected adoptive and prospective adoptive parents. Although more
controversial, it is reasonable to require United States agencies to “assume
tort, contract, and other civil liability” for the actions of the foreign
accredited or non-accredited partner.353 These liability rules would create
incentives for United States agencies to be far more careful in their use of
overseas partners, and elevate the industry’s standards for the use and
supervision of foreign partners.
The Final Hague Regulations significantly alter the approach of the
proposed regulations to this critical set of issues. The regulations give up the
attempt to define the liability of United States agencies for their foreign
partners. Thus, the Final Rule leaves such liability questions largely to the
States, or at least to whatever other bodies of law are applicable.354 The Final
Regulations also eliminate the loophole in the proposed rules under which
United States agencies are not responsible to provide supervision for persons
accredited in sending countries. The Final Regulations are based on the view
that accreditation, whether in foreign countries or the United States, does not
guarantee reliability, and hence initially appear to require United States
agencies to enter into supervisory responsibility and relationship with their
foreign partners in sending countries.35 5 However, having closed one
loophole, the Final Rules open another: where foreign partners engage in
certain tasks, including that of obtaining birth parent consents, the United
States agency can substitute a verification process for the supervisory
relationship.356 Such verification of appropriate birth parent consent is
accomplished “through review of the relevant documentation and other
appropriate steps.”357 The difficulty with this approach, however, is that in
some sending countries it has proven quite easy for those engaged in child
laundering to produce fraudulent documents, including birth parent
200 THE WAYNE LAW REVIEW [Vol. 52:113
358. See Part II(D), supra.
consents. 358 It is difficult to see how United States agencies will be able to
distinguish between fraudulent and legitimate documents, merely by
examining the documents themselves. If “verification” consists primarily of
physically examining a document allegedly signed by a birth parent (often
illiterate) in a foreign language and land, then the federal regulations may in
fact be creating a safe harbor for child trafficking and negligence. The
reference to “other appropriate steps” beyond document review therefore is
critical, and it is unfortunate that the regulations are silent as to the kinds of
additional steps beyond document review that are required.
Only when United States agencies are legally accountable for their
failures to select and work with trustworthy persons in sending countries will
there be sufficient incentives to avoid child laundering. It is unfortunate that
the Final Hague Regulations fail to clearly provide such incentives in this
critical area of United States agency responsibility for the misdeeds of their
foreign partners.
IV. CONCLUSION
The intercountry adoption system has become infected with a substantial
degree of child laundering. This child laundering is not an inevitable feature
of the system, but exists because of specific failings of law and practice
within the current system. Therefore, there are three alternatives: continue
the current system and allow systematic child laundering; shut down the
system, or at least those parts so infected; or reform the system. This article
has identified reforms that should be effective to sharply reduce the
incidence of child laundering, as well as reducing the allied evils of
profiteering and corruption within the adoption system. However, there are
severe political difficulties with the proposals, as they are unlikely to be
popular within the adoption community which dominates discourse on such
issues within the United States. Vulnerable families in developing countries
have little or no voice, and most stolen children never learn the tragedy of
their origins. The adoption community generally resists reform. Thus,
although these reforms may be rational, it is not clear that there is a rational
reason to hope for their adoption.

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