Selling one's own child: liability on both sides of the transaction
A man in Changzhou was traced after an advertisement offering a baby for sale appeared on a social app; he had bought a three-day-old girl for RMB 50,000 from her father, who said he could not afford to raise her, and then resold her to a childless couple in Nanjing. Under Article 240 of the Criminal Law and the 2010 joint opinion on trafficking, a parent who hands over a child for the purpose of unlawful gain commits child trafficking; genuine private adoption, by contrast, attracts no such liability, but the buyers still face punishment. All the suspects are in criminal detention.
Background
According to a report by The Paper, members of the public in Changzhou, Jiangsu, recently alerted the police that someone had posted information about trafficking a baby on a social app. The police began investigating at once and soon established from the leads that the matter involved a man named Wang who lives in a residential compound in Changzhou.
What puzzled the police was that Wang had a regular job and no previous record of any kind. In the course of their inquiries they quickly found that Wang had a friend in Suqian named Zhao, whose wife had given birth to a baby girl shortly before. The officers soon found the wife, Sun, and viewed the surveillance footage from the hospital where she had given birth.
It emerged that on the third day after the birth Sun's husband Zhao had taken the baby out of the hospital and sold her to Wang of Changzhou for RMB 50,000. Zhao says he sold the child because he genuinely had no means of raising her.
Unexpectedly, Wang then resold the baby girl to a couple in Nanjing who had been married for many years without children. The suspects involved have now all been held in criminal detention, and the baby girl has been placed temporarily in a welfare institution in Changzhou.
What offence do parents commit by selling their own child?
Article 240 of the Criminal Law of the People's Republic of China provides that trafficking in women and children means abducting, kidnapping, buying, selling, transporting or transferring women or children for the purpose of sale, any one of those acts being sufficient.
Article 17 of the 2010 Opinion of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Punishing the Crimes of Trafficking in Women and Children in Accordance with Law provides that a strict distinction must be drawn between selling one's own children under the name of giving them up for adoption and adoption arranged privately between individuals. The key to the distinction is whether the person acted with the purpose of unlawful gain, which is to be judged comprehensively by examining the background to and reasons for giving the child away, whether money was taken and how much, and whether the recipient intended to raise the child and was able to do so.
Any of the following circumstances may be found to constitute selling one's own child, to be punished as the crime of trafficking in women and children:
(1) treating childbirth as a means of unlawful gain and selling the child soon after birth;
(2) knowing that the other person does not intend to raise the child, or giving no consideration at all to whether the other person intends to raise the child, and giving the child to that person in order to obtain money;
(3) giving the child to another person in order to obtain a large sum which plainly cannot be described as a "nutrition allowance" or "thank-you fee";
(4) any other act of "giving up for adoption" sufficient to show that the person acted with the purpose of unlawful gain.
Where a person acts not for unlawful gain but out of hardship, or under the influence of the preference for sons over daughters, and privately gives a child who cannot live independently to another person to raise, including taking a small "nutrition allowance" or "thank-you fee", that is adoption arranged privately between individuals and may not be punished as trafficking in women and children. Where private adoption seriously harms the physical or mental health of the child, or other egregious circumstances are present, and the elements of the crime of abandonment are made out, it may be punished as abandonment; where the circumstances are plainly minor and the harm slight, the public security authorities may impose an administrative penalty in accordance with law.
It follows that even a natural parent who sells his or her own child for the purpose of sale is to be convicted and punished for trafficking in children.
No buying, no trafficking
Whatever the eventual judgment in this case, Zhao's conduct was certainly unacceptable and immoral. No abduction or kidnapping was used, but a child is not the private property of the parents and cannot be bought or sold.
The law requires parents to raise their children. Where they genuinely cannot do so, they may complete a formal adoption through the civil affairs authorities. Private adoption is unlawful, and taking money for it attracts criminal liability for trafficking in children. Refusing after the birth to perform the duty to raise the child, and deliberately abandoning it, will in serious cases constitute the crime of abandonment under the Criminal Law.
Some comments online take the view that the baby girl will have a better and happier life with a childless couple. But it must be understood that without buying there would be no trafficking, and that private adoption, besides risking criminal liability, leaves the child's lawful rights without proper protection. A couple who both wish to adopt need only satisfy the conditions in the Adoption Law, namely having no children, being capable of raising and educating the adopted child, not suffering from any illness regarded in medical opinion as making adoption inappropriate, and being at least 30 years old, and may then adopt lawfully through the proper procedure.