Forced marriage and surrogacy to be added to EU law for human trafficking crimes

MEP negotiators and the Council have reached a provisional agreement to add forced marriage, illegal adoption and surrogacy as types of exploitation covered by the EU’s anti-trafficking law.

The update of the directive on preventing and combating trafficking in human beings will now require EU countries to make sure that people knowingly using services provided by victims of trafficking, can face sanctions.

In 2011, the EU adopted a directive on preventing and combating trafficking in human beings and protecting the victims of this crime, setting minimum rules concerning the definition of criminal offences and sanctions.

According to European Commission data, sexual and labour exploitation are the main purposes of trafficking in human beings. However, begging or organ removal – already explicitly mentioned in the 2011 directive – and forced marriage and illegal adoption – which are not explicitly mentioned – now represent 11% of all victims in the EU in 2020.

The provisional agreement will be submitted to member state representatives in the Council for confirmation, and be formally adopted by both the Council and the EP.

The agreement foresees that member states must make it a criminal offence if a person who uses the service provided by a trafficking victim knows that the person is a victim of trafficking. In such cases, member states need to ensure that this offence is punishable by effective, proportionate and dissuasive penalties.

Under the current law member states should only consider making the use of services of persons exploited by human traffickers a criminal offence.

Council and European Parliament negotiators agreed to explicitly mention in the directive that the exploitation of surrogacy, forced marriage and illegal adoption are types of exploitation which fall under the scope of the definition of trafficking. The trafficking for the exploitation of surrogacy, which is when a woman agrees to deliver a child on behalf of another person or couple to become the child’s parent(s) after birth, will target those who coerce or deceive women into acting as surrogate mothers.

Including these forms of trafficking in the EU anti-trafficking law will take into account the prevalence and the relevance of these forms of exploitation.

As is the case in the current directive, the new types of exploitation – forced marriage, illegal adoption and surrogacy – will be punishable by a maximum penalty of at least five years of imprisonment, or of at least ten years of imprisonment in case of aggravated offences.

A new aggravating circumstance in the law will take into account the amplifying effect that information and communication technologies (ICT) can have as regards trafficking. This includes the fact that the perpetrator facilitated or committed the dissemination, by means of ICT, of images, videos or similar material of a sexual nature involving the victim.

Sanctions on legal persons, such as companies, held accountable for trafficking offences will also be beefed up. They will from now on cover the exclusion from access to public funding, including tender procedures, grants, concessions and licences, and the withdrawal of permits and authorisations to pursue activities which have resulted in committing the offence.

“I’m happy with this agreement. It strengthens the protection of victims of trafficking, with a special focus on the most vulnerable victims including persons in need of international protection, women and girls and children,” Swedish MEP Malin Björk (Left) said.

“It requires the member states step up their response to trafficking in human beings including mandating national anti-trafficking coordinators. We have agreed to tackle exploitation of trafficking victims in its most obvious forms. Even though I would have liked to have a more extensive ban on exploitation including sexual exploitation, this is already an improvement on current legislation. It can never be okay to take advantage of trafficking victims.”