Economy Versus Care: China's Economic Ambitions and a Conundrum in Alternative Care

• Citation: Vol. 32 No. 4
• Publication year: 2018
• topic: Family Law,Civil Procedure,Social Security

Economy versus Care: China's Economic Ambitions and a Conundrum in Alternative Care

Nicholas E. Basil

ECONOMY VERSUS CARE: CHINA'S ECONOMIC AMBITIONS AND A CONUNDRUM IN ALTERNATIVE CARE

Introduction

The citizens of the People's Republic of China (PRC) could once theoretically rest assured that the State would take care of their basic needs.¹ Orphans and abandoned children² were among those who could rely on the central government's guarantee of care.³ However, shortly after the death of Mao Zedong in 1976, economic reform became a top priority.⁴ The State revised its strategies and began to shirk its communist agenda.⁵ The shift in priorities from implementing a successful class struggle (per the communist agenda) to entry into global capitalist markets and fostering economic growth took center stage.⁶ As the communist PRC⁷ began to wean its citizens off of welfare and eliminate socialist work units, the way in which care was delivered between 1949 and 1978 also began to change.⁸ A new social method of foster care transpired, the central tenet of which was sharing the responsibilities of orphan care with individuals and families in the PRC.⁹ This method has presented a host of issues—specifically, issues that grapple with the quality of care given¹⁰ and

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the sheer number of orphans that institutions would have to accommodate.¹¹ The Chinese government has tried to regulate around these issues, but it is today confronted with the conundrum of striking a delicate regulatory balance between the quality of care provided and the quantity of orphans cared for.¹²

I. Topic and Scope

This attempt to strike a regulatory balance has resulted in regulations that one may argue should encompass a more comprehensive regulatory scheme—like those of Western countries—if they are to succeed. However, this Comment will not focus so much on asserting what policy fixes should be implemented or attempt to dictate direct solutions. Rather, it will identify some exemplary provisions from the regulations China has most recently implemented; contextualize how those regulations fit or match China's current identity in the westernizing world; and explain why China's socioeconomic and legal history may prevent it or deter it from a complete adherence to "Western" models. Although an outsider might be right to criticize seemingly incoherent regulations, it is not apparent that anyone without intimate knowledge of Chinese culture, history, and politics, as they relate to the current foster care situation in China, would be well-positioned to dictate propositions to the PRC. This Comment will highlight China's foster care system and the struggle to regulate it that China, in all its unique circumstances, faces as the country grows as a modern state.

In particular, this Comment will discuss how China's unique political, economic, cultural, and historical foundations make Western regulatory schemes improbable solutions for China's alternative care dilemmas. This Comment will also attempt to divert from tendencies of becoming an imperializing or paternalizing Western critique. The scope of this Comment will stick to dispelling the stigma that the PRC lacks law with respect to foster care and explaining why, at least in the case of the PRC, the West should give the PRC more room to assess its own needs and solutions.

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II. Purpose

This Comment will provide a comprehensive view of the direct causes of abandoned and orphaned children and the causes contributing to the exacerbation of the issue by policy and regulatory shortcomings. It is designed to engage in a theoretical discussion that brings the unconventional but realistic conclusion that while researchers and scholars can continue to criticize, lambast, laud, or inquire into how the PRC is regulating alternative care and whether they are living up to Western expectations, the PRC itself, in its purported autonomy, is in the best position to understand what will solve their foster care conundrum.¹³ It will also show that China's regulations, although increasing the quality of care, end up restricting how many are able to be cared for by disqualifying caregivers via stricter regulations, and that they do this by adhering to General Assembly Guidelines for the Alternative Care of Children.¹⁴ The only way to understand this sliding scale is to understand that it is the result of the PRC's transition to a market economy¹⁵ and engagement with the globalized world. Moreover, one can only understand the implications of a marketized economy on alternative care and alternative care regulations if they understand the history of China and, specifically, the history of orphans in China. The purpose of this Comment is thus to provide an understanding of how all of these factors are interrelated and use that premise to ground conclusions on the complexity and uniqueness of the issue. The only reasonable conclusion this Comment can arrive at is that the PRC must find its own way to balance quality and quantity of care until it has the resources to endeavor to account for all of the abandoned or abused children produced by its currently massive population.

III. Structure of the Comment

To organize these endeavors, this Comment will first explain the most common types of alternative care used today and then define some of the direct causes of the current foster care conundrum. This Comment will proceed to explain some of the exemplary provisions from the Ministry of Civil Affairs'

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most recently promulgated foster care regulations. Afterwards, this Comment will delve into a historical discussion that will provide the understanding necessary to realize China is its own special entity with such distinct legal, historical, political, cultural, and economic foundations that it may not be amenable to Western solutions.¹⁶ The historical discussion will trace from the PRC to traditional China.

This discussion will mainly show why there is a foster care issue and how it is a direct result of the greater sociopolitical and historical changes that China has undergone in roughly the last century. The discussion will especially highlight items such as the transition to a privatized economy in which the government spends little on welfare¹⁷ and where the market provides incentives that will, in theory, inevitably result in everyone's basic needs being satisfied.

The following sections will specifically discuss how this economic transition has left alternative care to only be accounted for by the State to a limited degree, which, in turn, means that all of the foster children in excess of what the State is willing to fund and bear¹⁸ will only be taken care of if a qualified foster family accepts the duty—in exchange for a small stipend—to take these children on. All children more than those cared for by the State and by foster families will not be accounted for, legally or otherwise. The following will include analyses of the issue at hand, including how the increase in regulations has decreased the number of eligible foster families and how, although children will be safer in comparison to an unregulated foster care industry, fewer children will be taken care of as a result. Implications such as this, that occur as a result of the PRC following international protocol, are precisely why the PRC cannot be shoehorned into "universalized" solutions.

The nature of this seemingly simple issue¹⁹ is quite complex. The complexity derives from the awkward position that modern China finds itself in—namely, between coerced Western conformity,²⁰ Maoist communism (known as

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"Maoism"),²¹ the semi-colonial period, and the legacy of traditional China. This adoption of various ideologies from throughout China's long, constantly changing history can be seen as the ultimate explanation for what the PRC embodies—or does not—including its policies and law with respect to the status of orphan care. Only by understanding the context will one understand the conclusion of this Comment, which is, namely, that hegemonic Western prescriptions requiring all states that wish to join the Western globalized world to mirror the West may not suffice for China to realize its own prosperity in the area of alternative care.

IV. Defining the Problem

Since the PRC began the process of "reform and opening up" (gaige kaifang) in 1978, it has been moving towards a capitalist market economy while maintaining an authoritative body that is reputed for tight control.²² The PRC has since experienced its famous economic miracle and alleviated poverty for over 600 million people in this transition.²³ Despite joining the Western globalized order, the PRC "is often presented dichotomously in the Western media as either a land of freewheeling opportunity or a dangerous threat to the industrialized world."²⁴ Essentially, the PRC has certainly been labeled an antagonist to Western ideals and the "rule of law," even while China has taken great strides to appease Western requirements.²⁵

Though the PRC has been prosperous in its economic transition, economic disparities amongst its people continue to escalate, and many children have been strongly affected by the socioeconomic transformations.²⁶ Statistical analyses use different definitions for "orphan" that create different results in measuring the approximate numbers of the orphan population in the PRC.²⁷ Using the

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PRC's definition, the first government survey on orphans took place in 2005, where the PRC said that the nationwide orphan count was 573,000, and that 86.3 percent of those orphans were in rural areas.²⁸ The United Nations Children's Fund (UNICEF) China conducted a follow-up study in 2010 that found the number of orphans had risen to 712,000, a twenty-four percent increase in a mere five years.²⁹ Moreover, the UNICEF figure does not even account for over 250,000 children estimated to have never been officially registered at birth due to fear of one-child policy...