HOW IS THE LEVEL OF CRIMINAL PROSECUTION FOR THE CRIME OF BUYING AND SELLING NEWBORNS REGULATED?

Table of Contents:

  1. What acts are considered “buying and selling” newborns?
  2. How to deal with people who take advantage of “giving and receiving” adopted newborns to commit the act of “buying and selling” to others?
  3. How is the level of criminal prosecution for the crime of buying and selling newborns regulated?

1. What acts are considered “buying and selling” newborns?

According to Clause 2, Article 2 of Resolution 02/2019/NQ-HDTP guiding the application of Article 150 on the crime of human trafficking and Article 151 on the crime of human trafficking under 16 years of age of the Penal Code, performing one of the following acts is considered “buying and selling” newborns, specifically as follows:

“2. Trafficking in persons under 16 years of age is the act of performing one of the following acts:

a) Transferring persons under 16 years of age to receive money, property or other material benefits, except for humanitarian purposes;

b) Receiving persons under 16 years of age to deliver money, property or other material benefits, except for humanitarian purposes;

c) Transferring persons under 16 years of age for sexual exploitation, forced labor, removal of body parts or for other inhumane purposes;

d) Receiving persons under 16 years of age for sexual exploitation, forced labor, removal of body parts or for other inhumane purposes;

dd) Recruiting, transporting or harboring persons under 16 years of age to perform acts of transferring persons according to the instructions in Point a and Point c of this Clause.”

2. How to deal with people who take advantage of “giving and receiving” adopted infants to perform acts of “buying and selling” to others?

According to Clause 2, Article 2 of Resolution 02/2019/NQ-HDTP stipulating the guidance for the application of Article 150 on the crime of human trafficking and Article 151 on the crime of human trafficking under 16 years of age of the Penal Code, those who take advantage of the act of “giving and receiving” adopted children who are infants to commit the act of “buying and selling” to others will be handled as follows:

“Article 7. Criminal prosecution in cases of using the method of brokering adoption

1. Those who use the method of brokering adoption of children under 16 years of age will be prosecuted for the crime of human trafficking under 16 years of age as prescribed in Article 151 of the Penal Code if they fall into one of the following cases:

a) Knowing that the purpose of the person adopting the child under 16 years of age is to sexually exploit, force labor, take body parts, sell to others or for other inhumane purposes but still transfer the victim to receive money, property property or other material benefits;

b) Taking advantage of the adoption to receive adopted children under 16 years of age for sexual exploitation, forced labor, removal of body parts or for other inhumane purposes;

c) Taking advantage of one’s position and authority to receive money, property or other material benefits to illegally broker adoptions of children under 16 years of age or facilitate illegal brokerage and adoptions while knowing that the purpose of the adopter is to sexually exploit, force labor, remove body parts or for other inhumane purposes.

2. A person with a position or authority who has taken advantage of his/her position or authority to receive money, property or other material benefits to broker illegal adoptions or facilitate illegal brokerage or adoptions, but does not know that the person adopting the child is sexually exploited, forced to work, taking body parts or for other inhumane purposes, shall not be prosecuted for the crime of trafficking in persons under 16 years of age, but depending on each specific case, criminal liability shall be prosecuted for the corresponding crime according to the provisions of the Penal Code.

3. A person who knows that another person has a real need to adopt a child (due to infertility or love for children) has brokered for this person to adopt a child from a person who, due to difficult family circumstances and cannot afford to raise a child, wants to give his/her biological child up for adoption and receives a sum of money from the child giving and the brokerage. This is a case for humanitarian purposes, so the broker, the person giving up their child for adoption and the person adopting the child are not prosecuted for the crime of trafficking in persons under 16 years old.”

3. How is the level of criminal prosecution for the crime of trafficking in infants regulated?

Pursuant to Article 151 of the 2015 Penal Code, amended and supplemented in 2017, the level of criminal prosecution for the crime of trafficking in infants is determined as follows:

“Article 151. Trafficking of a person under 16

1. A person who commits any of the following acts shall face a penalty of 07 – 12 years’ imprisonment:

a) Transferring or receiving a person under 16 for transfer for money, property, or other financial interests, except for humanitarian purposes;

b) Transferring or receiving a person under 16 for sexual slavery, coercive labor, taking body parts, or for other inhuman purposes;

c) Recruiting, transporting, harboring a person under 16 for the commission of any of the acts specified in Point a or Point b of this Clause.

2. This offence committed in any of the following cases shall carry a penalty of 12 – 20 years’ imprisonment:

b) The offence involves abuse of the offender’s position or power;

b) The offender commits the offence by taking advantage of child adoption;

c) The offence is committed against 02 – 05 people;

d) The offence is committed against a person for whom the offender is responsible for providing care;

dd) The victim is taken across the border out of Vietnam;

e) The offence has been committed more than once;

g) The offence is committed by despicable motives;

h) The victim suffers from 11% – 45% mental and behavioral disability because of the offence;

i) The offence results in 31% physical disability or more of the victim, except for the case specified in Point d Clause 3 of this Article.

3. This offence committed in any of the following cases shall carry a penalty of 18 – 20 years’ imprisonment or life imprisonment:

a) The offence is committed by an organized group;

b) The offence is committed in a professional manner;

c) The victim suffers from 46% mental and behavioral disability or above because of the offence;

d) The victim’s body part has been taken;

dd) The offence results in the death or suicide of the victim;

e) The offence is committed against 06 or more people;

g) Dangerous recidivism.

4. The offender may also be liable to a fine of from VND 50,000,000 to VND 200,000,000, be prohibited from holding certain positions or doing certain works for 01 – 05 years, be put under mandatory supervision for 01 – 05 years, or have all or part of his/her property confiscated.”