"Real" mothers for abandoned children

Law & Society Review, 2002 by O'Donovan, Katherine

Drawing on the laws and practices of three countries-England, France, and Germany-this article examines the constructions of narratives of abandoned children. Although the three countries share the values of the United Nations Convention on the Rights of the Child, having ratified it, their laws and practices with regard to the child's identity rights have little in common. Explaining the different approaches to abandonment, the article argues that these are justified by stories about the birth giver as the "real" mother, stories that vary according to place and culture. This leads to different conceptions of the child's identity and of motherhood, to exclusions and stigma. Focusing on the justifications offered in each country for its laws and practices, the article analyzes discourses of nature (England), juridical constructs (France), and pragmatic concerns for the child's life (Germany). The article concludes that, given the myriad of family forms and of life experiences, it is not surprising to find that countries governed by a shared international convention give very different accounts of the meanings of identity and motherhood.

Introduction

Abandoning a child is a crime in most legal systems. Yet some jurisdictions permit a form of legal abandonment in which the mother remains anonymous, a legal form that goes beyond placement for adoption. Despite current open adoption policies that emphasize the retention of ties with birth families and children's identity rights, a contrary tendency is emerging-the development of legal safeguards for anonymous abandonment, even in jurisdictions with open adoption policies. This is evidently a policy that contradicts openness. Contradictory tendencies have to be supported by differentiating discourses in order to develop. Thus the contradiction between permitting anonymous abandonment in which a child will not know his or her origins and open adoption, which emphasizes the retention of ties with the biological family, reveals tensions. This article concerns the issues of abandonment and identity rights in three European jurisdictions: England, France, and Germany. Contrasts among the legal policies on child abandonment both within and among these countries illuminates the difficulties of making coherent and consistent policies when faced with human problems for which law has few answers.

A summary of the law on abandonment in the three jurisdictions under investigation can name England as a case of denial, France as creating a legal right of anonymous maternity, and Germany as accepting anonymous abandonment as a pragmatic necessity. In other words, English law does not permit the giving up of parental responsibility by birth parents except through a legal process, such as consent to adoption. Even when a child is taken into the care of the state, parental responsibility is retained by parents and shared with the local authorities (Children Act 1989). France, however, in various forms has protected the right of a woman to give birth anonymously since the Revolution of the 18th century (Dreifuss-Netter 1994). A distinction is made between maternity and motherhood, the latter state being assumed through registration of the mother/child relationship ofter the child's birth and requiring further elements of proof (Rubellin-Devichi 1991). In Germany the law appears to tolerate "Babyklappen" (baby flaps), which have appeared in twenty-five cities, enabling the placement therein of infants without indication of birth registration or other details of identity of child or parents. that these jurisdictions have in common is that all three have ratified the United Nations Convention on the Rights of the Child, which contains two Articles (see Appendix A) protecting the child's identity (Le Blanc 1995:chap. 4).

We know from research on adopted children that genetic identity is important to some, whether for medical, psychological, or material reasons (Triselotis 1973; Wayne Carp 1998). Interest in genealogy is seen as natural, although the adoption search movement has been critiqued as introducing a new negativity into adoption (Bartholet 1993:37). The failure to understand "experiences of adoption as rooted in conflicting cultural conceptions of the natural and the social aspects of kinship" (Wegar 1997:16) must raise questions about claims that the search for genitors is a universal need. The institutions, policies, and discourses that constitute family, kinship, and adoption all play a part in the construction of "a right to know one's genetic parents." Care has to be taken not to stigmatize those who cannot, or do not wish to, search for their genitors (O'Donovan 1988). Open adoption policies contained in legislation in many jurisdictions show acceptance of blood ties as important, yet this investigation has not found that genetic identity is central in the discourses concerning abandonment under present investigation. The reasons are explored below.

A preliminary question when examining the discourses surrounding abandonment is whether the concern is with children or mothers. In discussions in England and France the focus is on the mother. It is the construction of her actions, combined with theories of motherhood, that provide the basis for the formulation of policies. Given the early stage of development of infants, it might be thought inevitable that the focus is on adult motivations. Yet the discourse in Germany provides a contrast in that there is neither speculation about the mother's state of mind, as in England, nor an emphasis on the rights of autonomy, as in France, but pragmatic talk of child protection, admittedly by adults who have taken on the role of protectors. In all three jurisdictions issues of the child's identity rights remain subordinate. Given these countries' shared participation in the UN Convention on the Rights of the Child, these discourses reveal not only the tensions involved in the constructions of maternity and motherhood and a lack of priority given to children's rights but also the localization of interpretations.