Owning Laura Silsby’s Shame: How the Haitian Child Trafficking Scheme Embodies the Western Disregard for the Integrity of Poor Families
by Shani M. King*
Harvard Human Rights Journal / Vol. 25
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INTRODUCTION
In January 2010, an earthquake in Haiti left hundreds of thousands of people dead, injured, and displaced, and over a million homeless.1 Three weeks after the earthquake, Haitian authorities arrested a group of Idaho missionaries for attempting to cross the border into the Dominican Republic with 33 children, without papers or proper authorization.2 The missionaries claimed they had the good intentions to set up an orphanage,3 but investigations showed that none of the children were orphans and that the missionaries may have been attempting to smuggle the children out of Haiti to be adopted internationally.4 Despite evidence of association with child traffickers,5 the Haitian justice system—prodded in part by President Clinton’s diplomatic efforts on behalf of the missionaries6—determined that none of the missionaries were guilty of illegal activities, except the leader Laura Silsby, who faced a lesser charge of organizing illegal travel.7
Along with the Haitian justice system, some observers excused the missionaries’ actions,8 even though they rose to the level of child trafficking. They did so essentially because we place such little value on the integrity of poor families; the idea that the missionaries were acting to “save” these children justified the damage they would have caused to the children and their families.9 In this way, the Silsby case offers a window into international and domestic child placement schemes that disrupt poor families and disregard traditional forms of child placement.10 In the international context, the demand for intercountry adoption (“ICA”) is driven by Westerners who wish to have children and who desire to save poor children.11 While relying on good intentions, ICA as it currently operates perpetuates a system of child placement that destroys the integrity of poor families and feeds illicit child trafficking schemes like the one devised by Laura Silsby.12 In the domestic context, the American foster care system also disrupts poor families.13 Children are funneled into a system that can be as harmful as the homes from which they are removed;14 yet the system still appears to remove the children with too little regard for the integrity of their families.
The U.S. foster care system and ICA are both premised on rescuing children from unfortunate life circumstances, stemming mainly from poverty.15 In both systems, instead of providing resources to enable families to take care of their children, these resources are used to remove children from their families and communities.16 Inadequate family reunification planning and services in the foster care system undermine parents’ attempts to regain custody of their children, and in ICA, adoptive parents pay substantial sums to complete the ICA process, while birth families typically receive no assistance that would enable them to better provide for the children who will be adopted.17 Ultimately, both the domestic and international systems disrupt the lives of poor families, but not always because it is necessary for the child’s well-being.18
This Article does not suggest that it is necessary to end foster care or ICA. On the contrary, recognizing the need for systems that ensure children are raised in safe and loving homes, I seek to show that the current systems need to be improved so they do not continue to systemically and unnecessarily damage the integrity of poor families. Movement towards this type of improvement will not happen, however, without acknowledgment that the problem exists.
Commentators generally accept that poor families are more likely to be involved in, and thus disadvantaged by, both the intercountry adoption system and the U.S. foster care system.19 In my previous work, I have explored the scholarship in both contexts.20 The current Article makes three broad contributions. First, it focuses on a gap in the existing literature by offering a clear theoretical conception of the genesis of this disregard for poor families. In my previous work, I have defined this genesis in the context of intercountry adoption as MonoHumanism.21
MonoHumanism describes a process of “Othering” in the context of intercountry adoption.22 This term is a collective notion identifying “us” as Westerners and everyone else as “the other.”23 The narrative of identity I have previously described that accompanies MonoHumanism subscribes both universality and superiority to Western knowledge and discourse, which effectively results in the exclusion and displacement of the knowledge and discourse of historically oppressed peoples.24 In the context of ICA, MonoHumanism means that children are not seen in the context of their family, community and culture, but rather, narrowly as the potential children of Western adults.25 In this Article, therefore, I argue that MonoHumanism is an unstated theoretical justification for the disrespect that society shows for the integrity of poor families. In this context, it is not only the West vs. East juxtaposition that is important, but the poor vs. rich juxtaposition as well. In other words, it is the exclusion and displacement of knowledge and discourse about poor families—the failure to see children in the context of their family, community and culture—or a slightly broadened version of MonoHumanism, that explains our failure to respect the integrity of poor families in the United States and abroad.26
MonoHumanism may at first blush seem inclusive rather than ethnocentric or myopic.27 I have chosen this phrase purposefully due to the strength of the inversion of the inclusive ideal accompanying this language.28 The phrase MonoHumanism was chosen because of the juxtaposition of “Mono” with the word “Humanism” to underscore the ethnocentric and myopic failure to include discourses that have their origins in the lives, cultures, and vocabulary of historically oppressed peoples, in areas that are often conceived of as a “win-win” for all parties involved and as the most humanitarian of endeavors.29 Even more fundamentally, the term “Mono” seems to exclude other possibilities and is commonly used that way, for example, with the terms “monotheistic” and “monolilthic.”30
While there are terms from post-colonial theory such as “ethnocentrism” and “Self/Other” that have informed my choice of this term,31 I offer this new label to specifically identify our approach towards poor children. My sense is that having a specific target will make it much easier to hit that target. To use a slightly imperfect analogy, instead of dismantling discrimination, we dismantle “Jim Crow laws” or the “separate but equal” doctrine. 32 Or, instead of stopping law enforcement officers from discriminating against people of color, we have taken a stand against “racial profiling.”33 In part, because previous terms have not captured our collective consciousness in a way that has resulted in the dismantling of our approach to poor families, as I have argued before, I think it is time for a new and very specific term that captures that approach. The term I have chosen is MonoHumanism.34
The second broad contribution is to show how this theoretical justification becomes a narrative that determines how we report on, read, think about, and interact with poor families both in the United States and abroad. I do this using the Silsby case,35 through which I explore how the ideas of child saving and rescuing poor Haitian children became the narrative that ultimately excused the U.S. missionaries’ actions in a clear case of child trafficking.
The third broad contribution is to show how customary child placement schemes, typically used by poor families as a creative adaptation to poverty, are not only displaced by structures set in motion by MonoHumanism, but are, in certain circumstances, more protective of the integrity of poor families than systems which may reflect classism, racism, sexism, ethnocentrism, and basic fundamental unfairness that permeates both international and U.S. child care systems. I do this by exploring one customary system of child placement in Haiti, timoun, and analogous child placement systems by poor families in the United States.
Taking into consideration these three broad contributions, the ultimate goal of this Article is to call attention to the fact that we continue, on a basic conceptual and theoretical level, to fail to respect the integrity of poor families. As such, it is currently unrealistic to expect the United States to create structures that protect these families. Frankly, creating structures that protect poor families would be fundamentally incongruous with who we are as a society (whether we admit it to ourselves or not) as it would be fundamentally at odds with the concept of MonoHumanism. It will only be when we turn a critical eye on U.S. society and interrogate our conceptual and theoretical understandings of the poor that we will develop the will to protect all families’ integrity. This Article hopes to be a spark that does just that.
Using the Silsby case as a window into the MonoHumanistic child placement schemes that affect poor families, this Article proceeds in several parts. Part I tells the story of the Silsby case and shows how the idea of rescuing poor Haitian children became the narrative that ultimately excused the missionaries’ actions. As I will explain, this is a rescue narrative that has its genesis in MonoHumanism. Part II describes the development of ICA as a means of “saving” poor children and explains how the strength of this rescue narrative feeds illicit child trafficking schemes. Part II also explores the international community’s response to ICA and its focus on protecting the birth family’s unity. Part III describes one customary system of child placement in Haiti, timoun or restav`ek, and explains how this system, unlike ICA, does not permanently sever the child’s relationship with his or her parents and may sometimes be preferable to ICA. This part also considers the problems with timoun, including its potential for exploitation. Part IV exposes the current U.S. child welfare system as one that disrupts traditional forms of child placement in the United States, much like ICA disrupts the customary systems of child placement in other countries. In Parts V and VI, the Article concludes that ICA markets and U.S. foster care systems reflect a theoretical and conceptual approach, one I refer to as MonoHumanism, that too often disserves the interests of children who may be better served by systems that respect their familial and cultural ties. The Article further concludes that the answer is not necessarily to outlaw ICA or dismantle the domestic foster care system. But by acknowledging and eventually overcoming our failure to respect the integrity of poor families, and the fact that both systems suffer from unfounded biases that feed illicit schemes or unnecessarily disrupt poor families, both systems can function as they should—by minimizing the disruption of family unity and traditional caregiving patterns, while fostering the well-being of every child who is impacted by the system.
I. THE SILSBY CHILD ABDUCTION SCANDAL
On January 12, 2010, a magnitude 7.0 earthquake struck 15 miles west of Port-au-Prince, Haiti.36 The earthquake was the strongest to hit the Caribbean in 200 years.37 Before the earthquake, Haiti was already considered the poorest country in the Western hemisphere.38 After the earthquake, the Haitian government estimated that 217,366 people died and 300,572 were injured.39 The earthquake damaged or destroyed 285,677 homes, leaving 1,237,032 people homeless, and 511,405 displaced.40 The United Nations estimated that about 2 million people required food aid in the aftermath of the earthquake.41 In response to the disaster, the U.N. issued an unprecedented call for 1.5 billion dollars in emergency and reconstruction aid to be sent to Haiti.42
In the first week of February, former President Bill Clinton accepted an expanded role as special envoy for Haiti, on behalf of the United Nations, to lead the coordination of international earthquake recovery and reconstruction efforts.43 One of Clinton’s first tasks in Haiti, however, was to put out the fire of a child abduction scandal involving American citizens.44
On January 29, 2010, less than three weeks after the earthquake, Haitian authorities arrested ten U.S. Baptist missionaries for attempting to take 33 children by bus across the border into the Dominican Republic without proper documentation.45 A week later, the missionaries were charged with child kidnapping and criminal association.46 While the missionaries claimed good intentions and ignorance of Haitian laws, Haitian prosecutors argued that there had been intentional wrongdoing.47 In the course of a month, President Clinton brokered the release of all the missionaries, except for the group leader, Laura Silsby.48
While Laura Silsby awaited trial, the press brought to light several facts that raised serious suspicions about her intent to traffic or smuggle the children as part of a grey adoption scheme.49 In 2009, Silsby visited Haiti with the stated intent to establish an orphanage.50 At the time, Silsby faced numerous court cases in the U.S. for bad debt and unpaid wages.51 In November 2009, she registered her New Life Children’s Refuge charity at an address in Boise, Idaho, and a month later the house was repossessed for lack of payment.52
In the midst of her personal debt crisis, the January earthquake struck Haiti, and Silsby organized a mission to “gather 100 orphans from the streets” of Haiti and take them to a shelter in the Dominican Republic.53 The children would be housed in a leased hotel because Silsby’s purported charity did not yet manage an orphanage or own any property in the Dominican Republic.54 U.S. authorities later stated that New Life Children’s Refuge was not listed as a U.S. nonprofit or as a U.S. international adoption agency.55
In March, after her arrest, evidence was introduced in Silsby’s case showing that on January 26, 2010, she had previously attempted to take a different group of 40 children across the border.56 Haitian and Dominican authorities turned her away for lack of authorizing documents.57 Three days later she attempted to cross over with the second group—the 33 children— again without proper documentation.58
After the earthquake, the Haitian government tried to crack down on unauthorized adoptions to avoid child trafficking.59 In addition, the Dominican consul in Haiti had personally warned Silsby that she lacked the necessary paperwork to take children out of the country and risked arrest.60
On March 17, 2010, after careful verification of identities by the Social Welfare Ministry of Haiti, 32 out of the 33 children were returned to their families (the last one being returned shortly thereafter),61 thus confirming that none of the children were orphans.
Previously, Silsby had told an Associated Press reporter that the children were delivered to the missionaries by “distant relatives” or “orphanages that had collapsed in the quake,” adding that “‘[t]hey are very precious kids that have lost their homes and families and are so deeply in need of, most of all, God’s love and his compassion.’”62 But an AP reporter revealed that Silsby had engaged an Atlanta-based Haitian minister, Reverend Jean Sainvil, and a local orphanage worker, Isaac Adrien, to find “homeless” children for her shelter.63
Parents of some of the children confirmed to the press and testified in court that they gave up their children to the missionaries after being promised by the recruiters and the group of Baptists that “the kids would be educated and relatives could visit them.”64 Reverend Sainvil convinced one parent to hand over his children to the missionaries for their better care, pointing out “that dead bodies buried under rubble in his El Citron neighborhood would breed disease.”65 Reverend Sainvil told reporters that:
Everybody agreed that they knew where the children were going. The parents were told, and we confirmed they would be allowed to see the children and even take them back if need be.66
Adrien—the orphanage worker—stated that parents jumped at the offer, while a mother who handed over her daughter observed that it was “only because the bus was full that more children didn’t go.”67
The parents gave their consent to the missionaries to take their children under the impression that Silsby and her group were providing shelter and education; the parents’ understanding was not that they were permanently parting with their children.68 Contrary to the parents’ expectations, Silsby’s express intent—according to her online action plan—was to place the children for adoption.69
Suspicions about Silsby’s intent to smuggle or traffic the children to the Dominican Republic further increased, when on March 19, 2010, Silsby’s legal advisor—Jorge Torres-Puello, an American-Dominican living in the Dominican Republic as a fugitive—was arrested and accused of human trafficking. 70 U.S. authorities revealed that Torres-Puello was “linked to a network that trafficked in Haitian and Central American children and [was] wanted in the United States, El Salvador and Costa Rica.”71 His wife was already imprisoned in El Salvador and “faced charges of presumed sexual exploitation of minors and women.”72
Despite Silsby’s stated intent to take the children over the border to an unauthorized orphanage and her connections to human traffickers such as Torres-Puello, the courts eventually dropped the kidnapping and criminal association charges against her.73 Silsby was instead convicted under the additional charge of organizing illegal travel, sentenced to time served (3 months and 8 days), and released on May 17, 2010.74 In the end, her sentence was based on the least polemic charge against her. The pressing issue— whether Silsby intended to deliver the children into trafficking rings or grey adoption markets—was not addressed or resolved.
Rather than turning on Silsby’s actions, the decision in her case appeared to turn on the actions of the parents. Judge Bernard Saint-Vil explained that his decision was based on the Haitian parents’ testimony that they had “[given] their kids away voluntarily.”75 Similarly, defense lawyer Jorge Puello stated that the missionaries “willingly accepted kids they knew were not orphans because the parents said they would starve otherwise.”76 Another trial attorney for the missionaries, Aviol Fleurant, argued that “[t]he parents’ testimony means no law was broken and ‘we can’t talk any more about trafficking of human beings.’”77 Essentially, the Haitian children are described as victims of the incapacity and poverty of their parents and country; their parents are portrayed as childlike because they are incapable of taking care of themselves or their children. In other words, the Baptist missionaries were justified in their actions because they were “rescuing” the children from incapacitated parents.
II. THE DEVELOPMENT OF ICA AS A MEANS OF “SAVING” POOR CHILDREN
A. A Brief History of ICA
Since the mid-20th century, adoption rates in the U.S. have increased dramatically.78 The increase is generally attributed to “an increased incidence of infertility among married couples and an absolute decrease in the numbers of infants placed for adoption.”79 The decrease in the numbers of infants placed for adoption does not mean that children are not available for adoption in the United States. On the contrary, as of September 30, 2009, there were approximately 115,000 children waiting for adoption from foster care.80 There has been a decrease in infants placed for adoption, in large part, because the population of “preferred” adoptable infants (white and non-special needs) has decreased since the 1950s.81 Several factors have contributed to the decrease in preferred adoptable infants in the U.S. since the 1950s, including an increase in the use of contraception and abortion, a decrease in the rate of relinquishment of children born to unwed mothers (particularly women who have greater resources), and more women entering the workforce and delaying having children.82
During the same period, ICA has increasingly served as a “substitute” for domestic adoptions.83 While it represented only 1% of all adoptions in the United States in 1965, in 2002 ICA represented 13.9% of all adoptions.84 Scholars offer several reasons for the increase in ICA, including a perceived lack of adoptable children in the United States (manifested as a preference for healthy light skinned infants),85 the ineligibility of adoptive parents in their own countries (age, marriage status, etc.),86 and the rise of open adoptions in the United States.87 Humanitarian concerns88 and lower costs have also been cited as reasons for the rise of ICA.89
Today, the United States is the country with the largest absolute number of intercountry adoptions per year, though that number has decreased to 12,753 in 2009 from an all-time high of 22,990 in 2004.90 Several European countries surpass the U.S. demand for children from abroad with greater per capita ICA than the United States, specifically Norway, Sweden, Denmark, Switzerland, France, and the Netherlands.91 Together these Western nations are spending billions of dollars to form families.92 In the United States, domestic adoption costs range from $0 to $2,500 for foster care adoptions and $5,000 to over $40,000 for domestic private adoptions while intercountry adoptions range between $7,000 and $30,000.93 The total number of children that were moved through ICA to developed nations was approximately 30,000 in the late 1990s.94 And, in 2004, over 45,000 children were moved through ICA worldwide.95
On the opposite end of the ICA market are the sending countries. For 2009, the top twenty sending countries to the U.S. (in descending order) were China, Ethiopia, Russia, South Korea, Guatemala, Ukraine, Vietnam, Haiti, India, Kazakhstan, Philippines, China-Taiwan, Colombia, Nigeria, Ghana, Mexico, Uganda, Thailand, Jamaica, and Poland.96 Countries often emerge as “sending countries” in the wake of political, economic, social, military, or natural upheaval.97 The first wave of ICA en masse to the United States came after World War II from countries affected by war such as Germany, Greece, Italy, Poland, Czechoslovakia, and Hungary, and continued from Korea and Vietnam after the respective wars in which the United States participated.98 After the 1970s, in the years of economic collapse and political regime transformation, Latin American and Asian countries became the focus of ICA.99 Successive regulatory changes at an international level during this period also facilitated ICA to the United States.100 A third wave of adoptions followed after the fall of the Iron Curtain in the 1990s, with countries such as Romania, Russia, and China becoming major sending countries.101
B. ICA’s Rescue Narrative: Saving Poor Children
The rescue narrative surrounding the Silsby case is consistent with that surrounding ICA generally.102 This narrative places the Western “rescuers” at a moral and normative center to justify foreign intervention as goodwill and can be very dangerous in the context of ICA because it encourages and facilitates the adoption of children who are not orphans. In fact, very few children who are adopted internationally are actual orphans.103 Instead, they may be deemed “social orphans” because their parents or relatives are impoverished and disempowered individuals who live in underdeveloped nations that do not have the social infrastructure to support economically disadvantaged families.104 By conceptualizing these children as victims of poverty, Westerners tend to justify paternalistic interventions, including ICA.
Post-colonial theorists might describe the rescue justification as a process of “Othering,”105 in which colonizers create narratives about the moral inferiority or helplessness of the people they subjugate (the “Others”106). In my previous work, I have described Othering in the context of ICA as MonoHumanism.107 In the context of ICA, MonoHumanism means that children are not viewed in the context of their family, community and culture, but instead as the potential children of Westerners.
Ratna Kapur identified a similar process involving women; she has shown how women in developing countries are portrayed as victims of their culture, thereby reinforcing stereotypical representations and subordinating those cultures to the presumably enlightened or more civilized culture of the West. Kapur explains how this process not only reinforces the notion that women in developing countries are perpetually marginalized and underprivileged, but encourages interventions into their lives that are “reminiscent of imperial interventions in the lives of the native subjects and which represent the ‘Eastern’ woman as a victim of a ‘backward’ and ‘uncivilized’ culture.” Kapur’s work provides a useful framework for understanding how conceptualizing children as victims of poverty invites paternalistic interventions under the banner of aid, when in reality, such interventions may cause more harm than good by disrupting local social networks of selfaid. 108
Along these lines, Smolin questions the moral underpinning of child rescue narratives, noting that the cost of one intercountry adoption could support an entire family in an impoverished country, instead of separating a child from his or her family.109 Moreover, Saunders explains that while humanitarian narratives are often used to explain demand for ICA, self-serving and personalized motivations are driving a profitable market.110 For the most part, humanitarian or rescue narratives serve as a cover for the intense demand for adoptable children from developing nations to counter Western infertility. Western parents seeking to adopt can ultimately overcome obstacles to acquiring a child with their wealth, and the combination of their demand and resources makes for an inevitable capitalist dynamic.111 As Nicole Bartner Graff states:
Any area with such large amounts of capital flowing into it, when guided by a free market economy, such as the one in place in the U.S., will be driven by the demands and expectations of that market. International adoption has, in effect, become a market driven avenue to child acquisition.112
These market demands, justified in part by the rescue narrative, continue not only to drive lawful ICA but also, as in the Silsby case, to temper the response to potential trafficking cases.
C. The Link Between ICA and Child Trafficking
UNICEF defines “child trafficking” as “the act of recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation regardless of the use of illicit means, either within or outside a country.”113 “Illicit means” include “coercion, abduction, fraud, deception, the abuse of power or of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.”114 And “exploitation” includes illicit adoption.115 Thus, the Silsby case, apparently involving illicit means to facilitate ICA—namely fraud, deception, and the abuse of the families’ position of vulnerability after the earthquake—would fit the definition of child trafficking.
But is the logical conclusion that ICA is generally linked to child trafficking? After all, the vast majority of parents who adopt internationally do not have nefarious intentions, and the vast majority of ICA does not involve abduction, fraud, or deception. But what of the abuse of power and vulnerability? Even in cases where good intentions drive ICA, the transaction overwhelmingly occurs between families that are at opposite ends of the power spectrum—the birth families are undeniably vulnerable, and the adoptive families are undeniably powerful.
Because of this power imbalance, the needs of the adoptive families are predisposed to drive ICA. And, because of a conceptual and theoretical displacement of the lives of poor people and concomitant failure to see children in the context of their society, family, and culture, the needs and worldview of Western families drive ICA. As early as 1978, in “The Economics of the Baby Shortage,” Richard Posner and Dr. Elisabeth Landes116 discuss “the pros and cons of using the market to equilibrate the demand for and supply of babies for adoption.”117 Posner argues for partial deregulation of the baby market so that the supply of babies will meet demand. He also states that, “some unknown fraction of adoptions is of babies bought in the black market, and the part of the demand for a good that is satisfied in a black market reflects the shortage in the lawful market.”118
Although Posner was writing decades before the surge in ICA, his analysis can be used to show how supply and demand drive ICA today and open the door to illicit trafficking. As the demand for children has increased, child traffickers who operate in the black or grey adoption markets have infiltrated some sending countries.119 In particular, child trafficking has plagued countries that were unprepared to handle a sharp rise in the demand for children and unable to effectively regulate ICA.120
The reality is that even countries that have handled ICA well thus far are susceptible to child trafficking. China, for example, is known for its tightly controlled adoption market.121 Even so, recent accounts of child trafficking in China’s adoption system suggest that high demand has led to the exhaustion of “babies and toddlers who are legally available for adoption, [thereby] causing the temptation to illicitly launder and traffic children for purposes of [ICA].”122
Western demand for children may even drive the development of child trafficking in the adoption markets of countries already plagued by child trafficking for other purposes.123 The prospect of Western money invites corrupt actors who “develop systems that can deliver” children “as quickly and as young as possible” to meet the desires of Western adoptive parents. 124 As Smolin has found, “[s]ocieties 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.’”125
Ultimately, for child traffickers involved in ICA markets, Western demand means Western money. Child traffickers exploit the demand for children for financial gain. Smolin and others have highlighted the corrupting influence of the large amounts of wealth from Western countries pouring into the adoption markets of sending countries.126 In short, “[l]arge amounts of money, relative to the economy of the sending country, create a temptation to launder children.”127
Thus, Smolin suggests that ICA can provide cover for illegal practices because it is a mechanism for “laundering” (legitimizing) children who are made available for adoption through trafficking, kidnapping, buying, and selling, but shuffled through licensed agencies for placement.128 In a case of history repeating itself, solutions to these problems are mostly brought up as questions of regulatory “design.”129 However, as Smolin points out, the problem is money:
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.130
Some have suggested eliminating and diminishing money transfers in all ICA transactions to reduce the profit-seeking motives of intermediaries, reforming international and domestic legislation towards accountability and transparency of parties involved in ICA, and criminalizing trafficking.131 However, as most law and economics experts would agree, the creation of regulatory obstacles to transactions in a profitable market simply heightens the positive incentives for black markets.132 Furthermore, the only means to counter black markets is to lower the profit or increase the cost of illegality through enforcement, which in a world of porous borders and laws has proven impossible with respect to nearly every illegal trade.133
The instability of countries that suddenly become supply countries for ICA further invites the possibility of deplorable practices involving the buying, selling, “baby farming,” and abuse of children. Countries such as Romania, Cambodia, and Guatemala that were socially, politically, economically, and legally unprepared to receive the onslaught of adults seeking children, have had to cease ICA altogether for long periods at a time due to corruption and the trafficking, selling, and abuse of children.134 These odious practices are repeated on a global scale as a consequence of a global market in children.135
D. The International Community’s Response to ICA
The international community has responded to ICA by seeking to protect the internationally recognized human rights of children and the birth family’s right to unity, while facilitating the adoption of children for whom international adoption is the best solution. The international community as a whole, of course, is not tethered to the theoretical and conceptual construct of MonoHumanism. The first effort to address the surge in ICA and protect children’s rights was the 1989 United Nations Convention on the Rights of the Child (“CRC”).136 The CRC “establishes a set of globally defined children’s rights and provides that in all actions concerning children, the best interests of the child shall be a primary consideration.”137 Although the CRC is one of the most widely adopted conventions, it resulted in controversy because its final language excluded an obligation for countries to take “appropriate measures to facilitate permanent adoption of the child.”138 The language was left out because of the idea that adoption was not the only way to provide children with stable homes and that it could sometimes work in opposition to the best interests of the child.139 The exclusion of this language is one of the reasons the United States has refused to ratify the CRC.140
In partial response to conflict over the terms of the CRC, the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Hague Convention”) was produced by the Hague Conference on Private International Law in May 1993.141 The purpose of the Hague Convention was to establish standards for ICA and a system of enforcement, as well as the means to address the worst ICA practices, such as corruption, kidnapping, sale of children, and falsification of documents.142 The United States ratified the Hague Convention in 2000 and enacted the Intercountry Adoption Act of 2000 (“IAA”)143 to comply with the Hague Convention’s mandate to create a Central Authority to oversee the implementation of the Hague Convention, among other obligations.
UNICEF is guided by the spirit of the CRC. As such, UNICEF believes “every child has the right to know and be cared for by his or her own parents,” and that “families should receive support to care for their children.” 144 In this sense, UNICEF supports ICA only if it facilitates the “best interests of the child,” and thus considers the Hague Convention a positive achievement towards improving conditions of ICA.145 UNICEF also calls for more stringent protocols to be applied in the case of disasters and war to protect children without parental care, who may be temporarily separated from their parents or other family caregivers.146
International organizations including UNICEF, UNHCR, the International Confederation of the Red Cross, and international NGOs such as the Save the Children Alliance reject ICA in cases of disaster or war, and instead place priority on “family tracing.”147 Creating a national registry of children in disasters is a critical instrument for family tracing and reunification. 148 Ultimately, these efforts to regulate ICA may mitigate some of the harm that can come of ICA markets. But since ICA is tethered to MonoHumanism and driven by market forces, and because the interests of Western prospective adoptive parents drive the demand side of the market, ICA will continue to separate children from their birth families, communities, and countries. By contrast, poor communities in places like Haiti have developed their own systems of child placement, which do not sever these ties. The next section specifically focuses on the timoun or restav`ek child placement system in Haiti.
III. TIMOUN (RESTAVE`K): HAITIAN CUSTOMS OF CHILD PLACEMENT
In a country such as Haiti where 80% of the population lives below the international poverty line and 54% lives in abject poverty,149 periods of conditioned monetary aid do not address the institutionalized poverty and extreme class stratification of the country. Instead, in the day-to-day, most Haitian people manage for themselves without foreign assistance. This section discusses a long-standing custom of child care arrangement used by poor parents in the poorest nation of the Western hemisphere—known as timoun or restav`ek.
Some Haitian parents customarily place their children into boarding arrangements with wealthier extended family or acquaintances in cities, where a child earns his or her keep by providing unpaid domestic work. These children are known in Haitian Creole as “restav`eks,” meaning children who “stay with” or “reste avec” others.150 The term “restav`ek” is also used colloquially in a pejorative way to denote servile dependence.151 To avoid humiliating a child who provides domestic services, Haitians use more socially acceptable terms such as “children who live with others” (ti moun ki rete kay moun) or “children who render services” (timoun rann s`evis), where timoun in Creole simply means “little one.”152
Like ICA, the timoun system has also been abused, raising widespread concern about the exploitation of children, including forced labor. But the fact that some actors exploit this custom should not completely overshadow the benefits it provides poor families and poor children, when it works as intended. The point of this section is to recognize that some of the benefits of timoun—such as maintaining family relationships—must inform child placement schemes.
A. Understanding Timoun
Because of the informal nature of the practice, it has been difficult to determine precisely how many children in Haiti are affected by the timoun system. A 2010 U.S. Department of State report estimates that approximately 200,000 children in Haiti work in the restav`ek system.153 However, many statistics confuse the number of children living outside the unitary family model with restav`ek.154 According to anthropologists Smucker and Murray, a more reliable statistic is that one-fifth of children in Haiti are living away from both of their biological parents (over 650,000 children).155 Perhaps 60% of such children, or maybe only 4%, are restav`ek, as a recent 2000 article suggests.156 Researchers know that most restav`eks are in the age range of 5 to 14 (with a majority in the age range of 12 to 14), girls are twice as likely to be restav`eks, and there is a higher incidence of this form of child placement in urban settings.157 Yet, the true overall numbers remain unknown.158
Not all host household arrangements qualify as restav`ek. For example, a parent might place a child in another’s house during a crisis or as a temporary means to send a child to school.159 Or a child might be sent to live with extended family, and though the child might help around the house without payment, the child very much remains a child of the house, not a servant.160 Orphanages in Haiti are also places were a parent might send a child for a brief time as a means to make ends meet and provide temporary child care.161 Many orphanages are not officially licensed, and though termed orphanages, function primarily as child boarding or group homes.162
The institution of timoun is old. In a 1942 article, Simpson claims that “Ti-moune . . . has been followed since the founding of the Republic of Haiti.”163 In a 1941 article, Simpson observes two primary classes in Haiti: “the members of the small privileged elite and the immense mass of barely subsisting peasants.”164 Explaining that they were “almost separate societies,”165 Simpson points out ways in which the two classes integrated through “[p]atterns of dominance and deference inherited from the colonial period.”166
One such pattern was the institution of timoun, which supported the relatively infrequent vertical mobility and integration of a child from the masses into the elite class.167 In his 1942 article, Simpson explains that the custom of sending peasant children to live several years with well-landed estates was a means for “a peasant to have an influential [military or otherwise prominent] protector,” or a means by which a poorer family gained favor and connection to a more influential family.168 A child might be sent to live in another estate as a “token of friendship,” and as such, timoun was also an established adoption practice.169
In a later 1952 article on affiliations through work in a rural region of Haiti, Metraux likewise notes that the transfer of people from poor households to wealthier households was common.170 Both Simpson and Metraux see timoun as a form of familial and estate affiliation used to establish networks of support among landed or military estates, within an agriculturebased economy with extreme class stratification.
In a similar fashion, a 2004 article by Smucker and Murray confirms that “[r]elationships in Haiti often have a transactional character. Negotiations over the giving and taking of children are no exception. Decision making in child placement is based on a calculus of costs, benefits, and household needs.”171 The relationship between the sending and receiving family remains a fundamental part of the transaction:
[P]lacement of a restav`ek child has a long-term connotation whereby the receiving household assumes primary responsibility for ‘taking care of the child’ or rearing the child in return for the child’s domestic services. The traditional arrangement for such restav`ek children also assumes that the caretaker household will send restav`ek children to school and cover the costs for doing so.172
Employers of restav`ek children generally wish to show sending parents that, true to the expectations, their children are being treated well and receive care and education in exchange for their labor.173 From the point of view of Haitian parents, sending children to live with others is a means of instilling values, such as responsiveness to family needs, generosity, a good work ethic, and a fierce pride in schooled education.174
The practice of timoun also transfers children from poor rural families to poor urban families, to assist in daily survival activities such as carrying water to the home.175 From this point of view, the practice of timoun is a means by which the poor support the poor in an extremely stratified society. The custom of timoun is a creative adaptation to poverty, which allows poor parents to provide alternative care for their children, including education.
B. Benefits of Timoun
Despite its vulnerability to exploitation, the practice of timoun can be mutually beneficial to Haitian parents, children, and host families. For example, parents benefit by “loan[ing] children to gain sociopolitical and commercial contacts in village and urban areas and to attain educational opportunities for their children.”176 Generally, timoun placements are a solution to difficult circumstances faced by the child’s family.177 It is a response to parents’ inability to support a child, whereby the host family provides care when the child’s family cannot.178 Consequently, parents no longer face the burden of providing for the expenses of that child’s care.179
Timoun can also benefit children by allowing them to live in a more stable environment. The host family provides for the child’s basic needs, and the boarding arrangement tends to offer an improved living environment and better material conditions.180 The child receives “better care, better clothes, and better schooling.”181 Timoun also fosters opportunities for upward social mobility for the child and her parents.182 A principal advantage of the practice is that it addresses Haitian parents’ strong desire for their children to obtain a formal education, since there are better schools in towns and cities.183 Parents have an expectation that the child will be sent to school under the boarding arrangement.184 Because parents believe that their child will encounter better life opportunities in cities and towns, the expectation is that the child’s placement with the host family will allow the child to secure some advantage for the child or her parents.185 Similarly, the expectation is that the child’s school attendance will enable her to develop contacts that will lead to a good paying job, so the child will be able to assist her parents.186
On a more fundamental level, in some circumstances, timoun facilitates Haitian children’s development by equipping them with life skills and aids their maturation by building character. It has been found that both parents and children find that timoun placements make children more disciplined and give them a sense of competence.187 School attendance leads to the child’s literacy, and having responsibilities cultivates in the child “being well-mannered” and developing “new habits.”188 Similarly, parents also appreciate the informal training and guidance that the child obtains from working in another household.189 Perhaps most importantly, the child/parent relationship is not severed.190
Claudia Fonseca describes similar local community-based practices of “child circulation and ado¸cao `a brasileira [adoption Brazilian-style]” in poor favelas in Brazil.191 Fonseca argues that these local customs are functional for both temporary and permanent child placement, based on community support and open relationships. But Cardarello cautions that today, these forms of child placement face pressure by legal authorities to place Brazilian children for international adoption as a preference over local child placement customs.192 Nevertheless, Fonseca believes that poor parents from the favelas will continue to find creative ways to evade interventionist government adoption policies, which increasingly reflect international and foreign standards of child rights, and which favela mothers are legally disempowered to contest in the grand scheme of inequalities between the South/Third World countries and the North/Western countries.193
Like “adoption Brazilian style,” the practices of timoun or restav`ek do not fit the idealized model for Western child care or the idealized Western family, whereby parents raise their children in a self-sufficient nuclear family. These caregiving practices do not correspond with our unacknowledged MonoHumanistic approach to the world. As I have said elsewhere, this Western definition of family “fails to reflect the cultural diversity and realities of many children” and negates other prevalent family configurations which make up functional families, such as single-parent households, grandparentgrandchild households, same-sex couples, and extended family arrangements, even within the United States.194
C. Timoun’s Vulnerability to Exploitation
Despite the benefit and opportunity a child may derive from an arrangement of timoun, the practice has also long been questioned, due to abuses and denial of promised opportunities that children living in host households may encounter.195 The debate has changed very little over time. Specifically, timoun is highly criticized by many humanitarian aid and religious organizations as a form of child slavery.196
UNICEF is concerned about situations in which timoun becomes child labor exploitation, and the ways in which it may become child trafficking. 197 The organization also notes that there are worse forms of labor to which children can be trafficked, such as physically hazardous work, sexual work, and illicit (drug courier) labor that may affect the development of a child, including her physical and mental integrity.198 The practical concern around timoun is the lack of means to supervise whether a child’s rights are being respected. UNICEF reports that each year approximately 2,000 children are trafficked to the Dominican Republic from Haiti, often with the apparent support of their parents.199 The Silsby case is an example of how this can happen.
In studying timoun, Smucker and Murray find no evidence of “literal” child slaves in Haiti, but do find cases in which restav`ek children are abused as unpaid domestic workers and other cases in which parents might be deceived and their children diverted into trafficking circles for exploitative work or sexual purposes.200 The authors insist on the need to use operationally precise language to differentiate a culturally sanctioned practice of foster care or even smuggling where there might not be any abuse involved, from child abuse and child trafficking.201
Timoun and other forms of placement outside the home are generally instigated by necessity.202 However, UNICEF indicates that poverty alone does not often trigger the movement of a child towards a possible exploitative work condition. The organization identifies several additional points of risk and vulnerability that decrease the capacity of parents to take care of their children, and which result in sending children away to work or children themselves moving away from home to find work. The organization refers to these factors as “poverty plus” and notes that they may include “individual, family, community or institutional-level risk” factors.203 Factors may include domestic violence, illness of parents (e.g., AIDS), war, community violence (e.g., gangs), lack of institutional support for education or health services, unemployment, and the breakdown of systems of livelihood due to disasters (e.g., ecological disaster that ruins fishing or farming communities).204 Such factors aggravate the conditions of poverty that may trigger a child’s movement away from home towards possible exploitation.
UNICEF’s examples for why a child may become a victim of trafficking do not apply to all timoun or other cases of placement outside the home, either because there is no work exploitation or there is no cross border travel. But UNICEF’s analysis is very useful when contemplating why timoun in Haiti has survived into the 21st century as an option for child placement, when the risks of exploitation are known. Specific to Haiti, we must ask how timoun continues to fill an indispensable social need for child placement services in the face of cumulative histories of violent conflict, lack of institutional support for education, health and income, foreign intervention, and a growing youthful population in Haiti.205 Ultimately, the problem is not the best efforts made by impoverished Haitian parents or their children to find work-placement arrangements, but the complex conditions of “poverty plus” that institutionalize timoun and other forms of child placement outside the home, as a means to secure basic housing, food and education for children.
Ultimately, timoun is a form of foster care, but never a permanent separation of children from their parents. ICA, on the other hand, while also making children vulnerable to exploitation, severs the relationship between children and their families and communities and disrupts the support networks that poor families use to help themselves. Below, I tell a similar story of disruption regarding foster care in the United States.
