In the scope of our study of human trafficking cases before the courts, we found two pertaining to the illegal adoption of children born in Lebanon. The decision-making authorities deemed that such adoption constitutes human trafficking and that the birth mother is a partner in the perpetration of this felony. In anticipation of the rulings in these two cases, this article raises the question of the birth mother’s liability: sShould her act of giving up her baby be considered trafficking, or does it indicate that she is a victim of exploitation?

 

Indicting Judges: The Mothers Trafficked Their Children

The current approach of the judicial authorities, especially the prosecuting, investigating, and indicting authorities, is to consider the birth mother’s act of giving up her baby a human trafficking felony under Article 586 (1) of the Penal Code. This is evident from two cases we observed:

In the first case, the Indictment Chamber in Beirut issued, in 2016, an indictment charging four people with trafficking a single child and referring them for trial at the Criminal Court. They were the child’s Bangladeshi mother, the latter’s Lebanese husband (who did not father the child), and the couple’s Lebanese landlord and his Lebanese wife (who acted as middlemen between the couple and the adoptive mother, who remained anonymous). Beyond the birth mother’s statement that the adoptive mother took the child to Saudi Arabia, the child’s fate remained unknown.

In the second case, the investigating judge in Mount Lebanon issued, in 2016, a decision pertaining to the illegal adoption of three children and referred the defendants to the Indictment Chamber. This decision encompassed 12 people: the biological mother of one of the children, three adoptive mothers, an adoptive father, a woman who owns an agency that recruits foreign domestic workers and who acted as a middleman between the biological mothers and adoptive mothers, two doctors, a midwife, the brother of one of the adoptive mothers, and two other people who played a role in the falsification of the children’s birth certificates. All those charged in this case were Lebanese except for the birth mother, who was Filipino. Two other birth mothers, also Filipino, remained anonymous. We were not able to determine the fate of the three children.

Besides these two cases, the statistics of the Anti-Human Trafficking and Morals Protection Bureau in the Internal Security Forces indicate that it investigated two more cases pertaining to selling children, but we were not able to learn the outcome of these investigations:

The first case was investigated in 2015 and involved the arrest of a Syrian woman on suspicion of selling a 25-day old child for money. Three Lebanese (two men and a woman) were also involved. We were not able to determine the child’s fate.

 

The second case was investigated in 2017 and involved the arrest of an Ethiopian woman on suspicion of selling two newborns to two Lebanese (a man and a woman). After the investigation, the two children were handed over to the Maryam And Martha Community.

Returning to the two aforementioned decisions, we find that both contained no explanation of the extent to which the elements of the crime were met. However, the investigating judge’s decision was distinguished by the fact that it deemed that the biological mother, alongside the recruitment agency owner who acted as a middleman, bears primary liability for human trafficking, whereas the actions of the adoptive families merely constituted accessories to the crime. The investigating judge also accused the child’s mother for the misdemeanor of giving up a minor for money or any other gain, even to put the minor up for adoption (Article 550 bis of the Penal Code). This confirms that the adoption of the anti-human trafficking law took place without revision to related laws, whereby the same act can be tried under two different texts.

Concerning the material gain arising from these illegal adoptions, the Indictment Chamber’s indictment indicates that the Bangladeshi mother received US$5,000, whereas her landlords received US$2,000 for acting as middlemen between her and the adoptive mother.

The investigating judge’s decision indicates that one of the mothers received US$1,350 and another received US$1,500. The third stated that she did not receive any money, but the adoptive family paid the hospital expenses associated with the delivery as she did not have enough money. The investigating judge’s decision also indicates that one of the doctors received US$1,500 and the other US$4,500 for arranging forged birth documents. The owner of the recruitment agency received $1,500 for acting as a middleman for one of the families.

 

Ignoring the Exploitation of the Birth Mothers

In these two cases, the investigating and indicting judges endeavored to charge the biological mothers with trafficking their babies without paying any attention to their circumstances or the acts of exploitation apparent in the middlemen and doctors’ behavior. These acts, which together make up the elements of the crime of human trafficking to which the accused mothers fell victim, are as follows:

The first is the middlemen’s act of luring the mothers and inciting them to give up their babies, which fulfills the actus rea of the crime. In the first case, the wife of the birth mother’s landlord was evidently the one that raised the idea of illegal adoption and persuaded the birth mother to give the child to a wealthy family. Similarly, in the second case, it is evident that the owner of the recruitment agency is the one who persuaded one of the biological mothers to give up her baby and that the adoptive families communicated with her to secure children.

The second is the exploitation of the mothers’ vulnerability, which fulfills the element of the means used for human trafficking. In both cases, the middlemen evidently exploited the mothers’ vulnerability to lure them and incite them to give up their babies. In such cases, this vulnerability stems from several factors, including the mothers’ poverty, their pregnancy outside of wedlock in a foreign country, the biological fathers’ abdication of any responsibility toward the babies, and the fact that they are foreign workers residing illegally in Lebanon because of the sponsorship system. Under such circumstances, their choices are almost entirely restricted to giving up the child as they cannot raise it in Lebanon or take it to their home country. Pregnancy inevitably leads to this outcome because abortion is criminalized in Lebanon.

The third is the removal of the children from their mothers, which fulfills the exploitative purpose that makes up the crime. Besides the middlemen and adoptive parents’ proven material gain, the exploitative purpose in this instance consists in the removal of the children from their mothers and the inducement of these mothers to commit an illegal act, namely the misdemeanor of giving up a child for money (Article 550 bis of the Penal Code).

 

This analysis of these adoptions is corroborated by the fact that they occurred for the benefit of wealthy families at the expense of poor mothers with no options. Yet the judicial decisions paid no attention to these facts in their analysis of the biological mothers’ liability. To the contrary, they charged the mothers with primary liability for human trafficking, or at least liability equal to that of the middlemen, adoptive families, and doctors who exploited their vulnerability.

 

This article is an edited translation from Arabic.