ACLU-PA Position: Opposes
Cases under §4305 almost uniformly arise in custody and adoption disputes. Following a Westlaw search, all of the cases cited under this statute deal with adoption. Although the bill sponsor offers this legislation through the lens of human trafficking, this crime, enacted in 1973, was created to stop illegal adoptions and payments for the purpose of obtaining infants.
The Pennsylvania Superior Court describes the statute here: “As noted supra, sales of children contravene the public policy of this Commonwealth, and cannot be sanctioned by our courts. [See 18 Pa.C.S.A. § 4305 (Dealing in infant children)3]. Thus, payments to or for natural parents by adoptor parents are permissible when the payments are for services which directly benefit the child, such as medical expenses directly related to the birth. See, Gorden v. Cutler, 324 Pa.Super. 35, 471 A.2d 449 (1983). Such expenses are paid to ensure a safe birth and healthy infant, and not for the benefit of the mother, although the mother certainly receives an indirect benefit. Payments by adoptor parents which do not directly benefit the child are impermissible.” In re Adoption of M.M.H., 2009 PA Super 177, ¶ 29, 981 A.2d 261, 269 (2009).
If traffickers — not people desperate for a child of their own — are buying and selling infants for nefarious purposes, those offenses would already be covered by the numerous other sex and assault offenses that heavily penalize crimes against children, including trafficking. Sexual harm or assault against children has been covered ad nauseum in the Crimes Code; there is no need to address it here. Moreover, despite the fact that HB 753 includes a disclaimer that this enhancement will not apply to “legal” adoptions or surrogacy situations, it still imposes an astronomical increase in grading (M1 to F1) to an offense that applies to people seeking custody of a child of their own — not traffickers.