By Liu Huawen
Foundling islands are also called baby safety islands. Overseas they are also called foundling protection cabins and are a place to care for abandoned babies. In June 2011, the Shijiazhuang Social Welfare Institute in Hebei Province set up a foundling island. By the end of 2013, many cities had set up such islands, which is a new measure for ensuring children rights.
There are different opinions on the establishment of foundling islands. Some argue that such facilities might in fact encourage the abandonment of babies.
It is worth discussing the establishment of foundling islands and the further development of such facilities, which are related to preventing and combating the crime of abandoning minors, the protection of children’s rights and improvement of the national child welfare system.
I. Trying out the new measures
Foundling islands were established to meet the goals of local welfare institutions. Incubators in such foundling islands provide newborns with the appropriate temperature and the oxygen. Welfare workers can find abandoned babies and treat them in a timely and effective way.
The mechanism of foundling islands was initiated in Shijiazhuang. In 2013, many places in China followed suit. On July 26, 2013, the Ministry of Civil Affairs issued a work plan for trying out “baby safety islands” at the China Children’s Welfare and Adoption Center, which sets an example for similar work in other areas of the country.
In November 2013, the first “baby safety island” in Guangdong province was established at the Shenzhen Social Welfare Center. Shenzhen became the first pilot city in the southern province.
On December 1, 2013, Nanjing started its work plan on establishing and managing baby safety islands. On December 4, the first foundling safety island in Shaanxi began operations at the Xi’an Children’s Welfare Institute.
On January 1, 2014, the Tianjin Children’s Welfare Institute organized a press conference to announce the opening of Tianjin’s first baby safety island. Zhang Min, president of the institute, said that the baby safety island would help abandoned babies and save them from further injuries.
In response to public opinion, Jiangsu started in January 2014 to implement a protection mechanism for abandoned babies or other children in trouble, asking each county in the province to set up a children’s welfare institute or agency in order to take care of all abandoned babies or orphans. The provincial civil affairs department supported the idea of baby safety islands, but did not ask every locality to establish its own facilities.
On December 27, 2013, Civil Affairs Minister Li Liguo, while speaking at the National Civil Affairs Work Conference, called for continuing to improve the protection mechanism for orphans and standardizing activities for taking in abandoned babies. The state will draft policies to include all children without guardians in the state welfare system. He said that in 2014, the ministry would expand the generous children’s welfare system to more localities, planning children’s welfare agencies at the county level.1
In practice, Children who have no one to care for them are children who have one dead parent while the other one has given up guardianship, or who have one parent who is in prison and the other one is divorced. Children who have no guardians are sometimes called semi-orphans or quasi-orphans. They live in difficulty and need social assistance. However, the current mechanisms for helping orphans are targeted at children whose parents have died. Such orphans are given subsidies or offered some other relief.
The establishment of foundling islands is an effort by the state to standardize the adoption of abandoned children and strengthen protection for children lacking parental care. It is an innovation by the civil affairs mechanism in China.
In fact, the establishment of foundling islands has long existed in foreign countries.2The earliest facilities for abandoned children were established in 1188 in France. At that time, a hospital installed a makeshift wooden bed inside its window along the street. Abandoned babies could be placed on the wooden bed, from which medical workers took over guardianship. The bed could be turned around and the facility was thus called the “rotary wheel for foundlings.”
In Italy, the Holy Spirit Hospital in Rome established the first rotary wheel for foundlings there in 1198. Such facilities increased in Italy to roughly 1,200. Since the beginning of the 19th century, rotary wheels for foundlings have been involved in the abortion controversy. In 1923, Italy abolished these wheels. Italian doctor Giuseppe Garrone in 1992 initiated a social relief center called “Life movement,” advocating for the return of rotary wheels for foundlings. Afterwards, social facilities for abandoned babies appeared again in Italy, and were called the “cradle of life.”
In recent years, some European countries have again set up baby incubators to be used after induced abortion or for newborns, so these babies can be protected from abandonment or killing. Such facilities allow parents who are unwilling to take care of those babies to leave them in the incubators. Since 1996, Hungary, Germany, Belgium, Switzerland, the Netherlands, the Czech Republic, Austria and Italy have set up more than 100 incubators for abandoned babies. In April 2000, Germany set up its first incubator in Hamburg. By May 2012, Germany had had more than 90 such incubators. India, Pakistan, the Philippines, Japan and South Africa have also used such incubators. In 2011, Russia set up its first incubator for abandoned babies. Since then, this practice has spread in Russia.3
Such incubators, with small openings and soft bedding, are usually installed in hospitals or social service centers. Sensors installed in the incubators automatically notify caretakers to take the abandoned babies who are placed in the incubators.
However, there have been disputes and controversies related to facilities for abandoned babies and related institutions.
II. Crackdown on Crime and Human Rights Protection
The establishment of foundling islands in fact helps people who abandon babies to accomplish these illegal acts. This has aroused a paradox between reason and the law and requires discreet analyses and reasonable decisions by lawmakers or policymakers.
Abandonment of babies, whether in China or in foreign countries, is a crime that should be punished by law.
Such an activity is regarded in many countries as a crime, even a felony. Many state laws in the United States prohibit the abandonment of babies by parents who cannot find protectors or guardians for their babies. In Georgia, intentional abandonment of a baby is a crime and fleeing the state after the abandonment is a felony. The punishment for abandoning babies in Canada was raised from two years imprisonment to five years.
China has always stressed family protection for children. In the first chapter of the law on the protection of minors, Article 10 stipulates that parents or other guardians should create a good and harmonious family environment and perform the responsibility of guarding and taking care of minors in accordance with the law. Minors must not be exposed to domestic violence, abuse or abandonment. Drowning or cruelly injuring babies is prohibited. Female minors or minors with disabilities must not be discriminated against. The law also stipulates that any abandonment of babies will be fined by the police. The perpetrators of crimes related to abandonment will face criminal charges.
Abandoning minors is eligible for the charge of abandonment. The criminal law stipulates that people who have a responsibility and obligation to take care of seniors, minors, patients or other people without the means of independent living, but who refuse to fulfill that responsibility, will be sentenced to up to five years imprisonment, detention, or control.
Now that abandonment of babies constitutes a crime, why bother to set up foundling islands? Doesn’t the establishment of such facilities encourage more abandonment and more abandoned babies?
The author believes that the abandonment of babies will exist, with or without foundling islands. Abandonment of babies is a social problem, and is not triggered by setting up foundling islands. However, the appearance of more abandoned babies in foundling islands has made people erroneously believe that abandoned babies are more than ever.
It is common sense that neither families nor parents can easily give up their children. People who have the means to raise their own children, but refuse to take this responsibility and who take advantage of such facilities for social benefit are not qualified to be guardians of those children.
Foundling islands make relief work more effective by giving timely assistance to abandoned children and reducing fatality.
On the other hand, not setting up foundling islands is insufficient protection for children. Due to the male-preference cultures of China and India, some female babies have been drowned. Children born before or outside of marriage are also prone to be abandoned. Poverty, natural disaster and war are also reasons for the abandonment of babies. Newborns with congenital diseases or disabilities are often abandoned by families that have little means to support them.
Abandonment is the greatest threat to the life of babies, who are often abandoned in wild areas or street corners where they may be hardly noticed by people. Many die after being abandoned alive. Leaving them at a crossroads or at the gate of a hospital or social welfare institution may be good for them.
Meanwhile, the abandonment of babies is associated with crime. This includes killing or drowning babies, trading babies and human trafficking. The minor girlfriend of a man surnamed Jia gave birth to their baby, who was sold by Jia for 80,000 yuan. In January 2014, the Beijing Shunyi District People’s Court sentenced Jia to five years in prison with a fine of 5,000 yuan, together with confiscation of the amount for which he sold the baby.4
Abandonment of babies breaks the law. Without a social response, the damage resulting from abandonment will not be avoided or diminished. Establishment of foundling islands is a solution to a tough social problem and prevents further harm to abandoned babies.
The existence of a paradox means there is no perfect solution to the problem. Establishment of foundling islands protects the life and health of abandoned babies, but constitutes one part of the crime of abandonment and is related to policy orientation and legal value.
The legal value of modern law, including criminal law, is not only related to law enforcement and a crackdown on crime, but also to the protection of rights and the resumption of social relations that have been damaged by criminal activity. Some scholars have emphasized that criminal law in China has been transformed from state-power criminal law to civil rights criminal law.5 Some have even raised the concept of livelihood criminal law.6
Although there are disputes, the establishment of foundling islands itself is progressive. Such a mechanism should be improved to reduce the number of abandoned babies and enhance the efficiency of rescuing such babies.
III. Maximum Benefit for Children
The establishment of foundling islands embodies putting people first and respecting the right to life, which complies with the United Nations Convention on the Rights of the Child, which was endorsed by the Chinese government.
The convention is regarded by the international community as the children’s rights charter. It is the international human rights convention that has been signed by most countries in the world. Achieving the greatest benefit for children is one of the core principles of the convention.
In Article 3, the convention says, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” In Article 6, the convention says, “State parties recognize that every child has the inherent right to life and state parties shall ensure to the maximum extent possible the survival and development of the child,” which is also believed to be a fundamental principle of the convention.
The principle of maximum benefits for children has been absorbed by and merged in Chinese laws and regulations. It is sometimes called the principle of the priority of children. On July 30, 2011, the State Council issued The Guidelines for Children’s Development in China (2011-2020), which clarifies new goals and measures of the Chinese government to enhance children’s development. The guidelines call for sticking to the principle of the priority of children, safeguarding children’s rights to existence, development, protection and participation, reducing the disparity of regional development for children, enhancing the level of children’s welfare, raising the overall quality of children and promoting their healthy and all-round development. The guidelines require the priority of considering children’s interests and needs while drafting laws and regulations as well as planning policies and allocating public resources.
On June 11, 2012, the State Council Information Office issued The National Human Rights Action Plan (2012-2015),which required adoption of a law for the protection of minors in order to push forward the legislative process for children’s welfare, preschool education, family education, as well as earnestly safeguard children’s rights to existence, development, protection and participation in accordance with the principle of maximum benefits for children.
In regard to the abandonment of babies, the babies are innocent. Prohibiting the abandonment of babies does not mean ignorance of children’s rights to life and existence. The institutions, laws, policies and their implementation should always put people first, and particularly consider the maximum benefit for children.
In reality, parents give up their own children often as a last resort, for subjective and objective reasons. While persuading parents not to abandon their children, blaming them or even punishing them, the government should pay great attention to protecting children’s rights. This should not be affected by the illegal activities of their parents.
Besides prohibiting and punishing illegal activities, active preventive measures should be taken, including sex education among youth to reduce unexpected pregnancy and birth, pre-marriage and pre-pregnancy check-ups to reduce the chance of giving birth to ill babies, and improvement of social insurance and relief work to bail out poor families that can hardly sustain seriously sick babies.
On the issue of abandoned babies, we should work hard to prevent such abandonment. Meanwhile, standardized and effective procedures to take care of such abandoned babies should be in place in response to any case of abandonment, thus ensuring the life and health of those abandoned babies. At all stages, the maximum interests of babies must be ensured.
IV. Standardization and Improvement of Adoption for Abandoned Babies
Safety islands for abandoned babies are related to the health and safety of people and are special facilities that should not be neglected. Therefore, related systems should be standardized.
Safety islands should primarily be warm, comfortable and safe, and should consider the needs of ill babies. The operation of safety islands should be kept private, thus allowing people who abandon babies to exit in a safe way, thus ensuring that abandoned babies can be found in the first place. The procedure for finding, adopting and transferring should be clarified, standardized and coordinated.
The safety island in Nanjing is located east of the Nanjing children’s welfare home, which is constructed with special materials to prevent fire, resist cold and produce few pollutants. The safety island provides baby incubators with a comfortable temperature, humidity and enough oxygen, as well as baby beds and bedding. There are no automatic cameras installed near the incubators and electronic alerts are designed with a time delay function, which ensures that people who abandon babies may leave without notice. Five to ten minutes after the alert, personnel will arrive to check.
Publicity regarding the establishment and operation of safety islands is also in dispute. A compromise has been reached that does not advocate spreading publicity but does help those in need to find such facilities. Meanwhile, people who abandon babies should be notified that they should leave the names, birth dates, medical records and lab test reports of the abandoned babies. This would significantly ensure the abandoned babies’ rights to birth and identity registration and their chance of getting medical assistance.
The subjects that are helped by safety islands should have clear legal definition, which usually requires a time limit.
The state of Texas in the United States stipulates that within 72 hours, parents are allowed to anonymously send their babies to locations like fire stations and hospitals. The state of Nebraska in the United States previously did not limit the time for baby abandonment. As a result, none of the abandoned brought to hospitals were babies. In fact, the eldest was 17 years old. Some children were even transported from other states to Nebraska. As a result, the state had to revise the law to stipulate that abandoned babies must be no older than one month.
Various countries have different procedures and steps for adoption. Italy’s law allows pregnant women, under anonymity, to be admitted to a hospital for delivery. After giving birth to babies in hospitals, women who wish to abandon their babies will not be asked to leave any information or sign any documents. The birth cards of abandoned babies will be marked as births by anonymous women. The hospitals will submit the birth certificates and abandonment statement to civil affairs agencies. Upon approval at the minors’ court, the civil affairs agencies will name the abandoned babies, which may be placed in orphanages before being adopted by other families.
Many European countries have set up temporary facilities to take care of abandoned babies and allow parents to change their mind. Italy’s law stipulates that mothers of abandoned babies may change their mind within 60 days. In Germany, after babies are abandoned into incubators, their parents will have up to eight weeks to take back their babies, without taking any legal responsibility. After the eight weeks, the abandoned babies are available to society for adoption. In Switzerland, parents who abandon babies have six weeks to reconsider. Within this period, parents can take back their abandoned babies. After that period, relevant agencies will arrange adoption.
The concept of having a period during which people who have abandoned their babies might reconsider their decision should be borrowed by Chinese policymakers. This might be another chance for babies who have been abandoned to return to their families and also for parents, for whatever reason, to revise their unreasonable decision.
V. Ensuring Care for Abandoned Babies
Abandoned babies who go from safety islands to local welfare homes should be treated in accordance with their health condition. Those who urgently need emergency medical treatment should be sent to hospitals in a timely way.
In recent years, China launched Project Tomorrow and Project Blue Sky. The former project offers free surgery and rehabilitative services to disabled orphans. The latter project focuses on improving the hardware of children’s welfare houses. For years, China has trained infant nurses, rehabilitation workers, caregivers and special education teachers. Social work is a profession in Chinese society and social workers are playing an important role in welfare houses.
Abandoned babies are usually raised in social agencies like welfare houses. Foreign practice and related research have proved that organizations face great challenges in raising those children, who are often better educated in ordinary families. Therefore, the professional quality of such social organizations should be improved while opportunities should be created for abandoned babies to be adopted by ordinary families.
However, abandoned babies don’t have much of a chance to be adopted. First, there are complicated legal procedures for adopting children in China. Second, many families or individuals, with the utilitarian mindset of raising children in preparation for their own old age, are not willing to adopt disabled children or those with certain health defects. Legislation for adoption should be reviewed, appraised and improved. Meanwhile, society should advocate the adoption concept of caring children, loving children and pursuing the joy of family life.
In 2006, Zhang Mingliang, who worked for the Ministry of Civil Affairs, wrote, “Adoption of abandoned disabled children by social agencies is not a good choice. Bringing them back to families and thus to the society might be the best alternative.”7 In December 2001, the Ministry of Civil Affairs organized a symposium on modes of taking care of disabled orphans in Wuhan, Hubei Province. Participants at the symposium agreed that foster care by families might be the best available way currently for bringing up orphans in a healthy and stable way. Based on that agreement, since 2004 the ministry has promoted family foster care based on the principle of maximizing children’s interests.
The National Human Rights Action Plan (2012-2015), which was issued in June 2012, called for vigorously combating illegal activities related to abandonment. At the same time, it called for including orphans, seriously disabled children and children with serious or rare diseases in the social security network, improving protection for orphans and increasing the number of fostered or adopted orphans.
Fostering refers to authorizing chosen families to raise orphans whose guardianship rests with civil affairs departments.
On January 1, 2014, the Shenzhen Civil Affairs Bureau and the Shenzhen Social Welfare Association issued appraisal standards for fostering disabled orphans. This is an active measure for standardizing arrangements for fostering orphans. The document regulates the terms and requirements for families that wish to foster orphans, monitoring and supervision of family fostering, and appraisal and improvement of fostering. The document divides appraisals of family fostering into three categories, pre-fostering, current fostering and post-fostering, with procedures and indexes accordingly. For example, the pre-fostering appraisal requires fostering applicants to be permanent residents with stable residency, have no less than 20 square meters of living space for each family member during the fostering period, have an average income for each family member of more than 3,000 yuan, have no family members with contagious or mental diseases or other diseases that might harm foster children, have no family members who have criminal records or harmful habits, have primary caregivers who are between 30 and 65 years of age, have primary caregivers who have received at least a middle school education, have primary caregivers who have the capability and experience to take care of foster children, and have no family members who are opposed to foster children. The document also stipulates that fostering will be revoked if the rights of the foster children are violated. People who violate these rights will be held responsible.8
Children’s welfare, rights and benefits are protected in China through the Law on the Protection of Minors, the Law on the Prevention of Juvenile Crime, the Compulsory Education Law, the Law on the Protection of the Disabled, the Adoption Law, the Criminal Law, the Law on the Management of Public Order and Punishment, and general rules of civil law. There is no single uniform law that protects children’s welfare and interests. In order to improve the welfare protection system for children and needy children in particular, the Ministry of Civil Affairs began in 2010 to draft the Regulation on Children’s Welfare. In 2011, the children’s welfare legislation was included in China’s Children’s Development Outline (2011-2020).
The legislation on children’s welfare is significant and has drawn social attention. During the first session of the 12th National People’s Congress (NPC) in March 2013, Zhou Hongyu and 29 other NPC deputies filed a motion on children’s welfare. The deputies said that infringements on children’s rights have occurred frequently in recent years. The lack of a children’s welfare system has resulted in insufficient protection for the rights and benefits of children. The work of children’s welfare has been assigned to a few departments, which have individual, sometimes contradictory, policies. Measures on children’s welfare stipulated in relevant laws are hardly effective in operation and can’t fulfill their purpose. The deputies proposed to speed up the legislation on children’s welfare in order to better protect children’s rights and interests.
The Ministry of Civil Affairs has set up pilot projects for a universal children’s welfare system in Kunshan, Jiangsu Province, Haining, Zhejiang Province, Shenzhou, Guangdong Province, and Luoning, Henan Province. All these pilot projects, including experiments on safety islands for abandoned babies, will lay a legal basis for establishing and improving the children’s welfare system in China.
The safety islands for abandoned babies were established amid disputes and will also develop amid disputes. The effectiveness of a mechanism requires not only careful design but also earnest implementation. Theoretical research and guidance, continuous improvement of regulations, institutions and mechanisms, as well as support, management and supervision through practice should all be strengthened to maximize benefits for children. While opposing illegal activities concerning baby abandonment, the society should arrange for, take care of and raise the abandoned, and earnestly protect their rights.
(The writer is research fellow and assistant director of the International Law Research Institute, and deputy director of the Human Rights Research Center, the Chinese Academy of Social Sciences.)
1.“De facto abandoned babies to be protected,” Jinghua Times, Dec. 28, 2013, p. 3.
2.Ge Chen, Feng Wuyong and Tang Zhiqiang, “Disputes on foundling islands in developed countries,” Xinmin Evening News, Dec. 12, 2013, p. B8.
3.Han Chen, “U.S. allows ‘safe’ abandonment of babies, Europe installs incubators for abandoned babies,” Guangzhou Daily, Jan. 8, 2013, p. A12; Wen Sha, “Russia’s incubators for abandoned babies: Hopes in paradox,” Youth Reference, Dec. 18, 2013, p. 20.
4.Liu Yang, “Selling own baby at 80,000 yuan under pretext of adoption,” Beijing Times, Jan. 11, 2014, p. A10.
5.Liu Renwen, “From state-power criminal law to civil rights criminal law,” Legal Daily, Feb. 16, 2011, p. 10.
6.Lu Jianping, “Increasing protection for livelihood criminal law,” Journal of Law, vol. 12, 2010, pp. 10-13.[page]
7.Zhang Mingliang, “Guided by the Scientific Outlook on Development, pushing forward healthy development of adoption work,” Social Welfare, vol. 3, 2006, p. 5.
8.He Yong, Cheng Shengtao, “Family with 3,000 yuan average per capita income able to foster disabled orphans,” Shenzhen Special Economic Zone Daily, January 6, 2014, p. A6.
