“Non-Legal” Orphanages and the Chinese State

In this summary of a broader project, Anna High examines the survival and oversight of local, grassroots NGOs engaged in a particularly sensitive sector: the care of orphans by underground church groups and foreign mission workers. She finds these NGOs involved in a wide range of state-society interactions: regulation, negotiation, and societalization (社会化). These interactions were premised on legitimacy, rather than legality; further, they were generally imbued with a sense of controlling paternalism on the part of the state. Accordingly, the sector has expanded very gradually and cautiously, with the informal nature of state oversight resulting in practical difficulties for orphan NGOs.

Official government estimates put the number of “orphans” in China at over half a million as of 20111. State orphanages designed to care for these children are located in urban centers; orphans and abandoned children in rural areas (who account for around 85% of the total orphan population) do not generally have access to such institutions. Accordingly, the vast majority of China’s orphaned and abandoned children are looked after either by relatives, the customary practice of nongcun wubao2, or in unregistered and unrecognized grassroots orphanages, which I label ‘non-legal’3. In addition, a growing number of state orphanages are partnering with foster homes, run for the most part by foreign mission workers, which care for children in the guardianship of state orphanages on a short or long-term basis, usually to provide medical or surgical care not otherwise available from the state4. Such foster homes and private orphanages (which I will refer to collectively as private orphanages/homes), run by individuals and church groups, have sprung up across China in response to perceived gaps or shortcomings in the provision of state welfare for orphans, and constitute an alternative, parallel and often unacknowledged system of care to the state-operated welfare institutions.

This article presents the main findings from a 2009-2011 study investigating China’s non-state orphanage sector. Specifically, the study focused on: (1) the nature of the interactions between the sector and local state officials; and (2) the practical impact of the lack of formal oversight of the child welfare sector. Interviews were conducted with participants from a total of 25 different private orphanages and foster homes in six provinces/municipalities, based on snowball sampling.

To investigate the relationship between unregistered, ‘non-legal’ private orphanages and the local state, I adopted Shawn Shieh’s approach to mapping dynamics in the NGO sector: a framework consisting of three modes: regulation, negotiation and “societalization”5. Regulation denotes “formal state initiatives and mechanisms designed to control and manage [NGOs]”; negotiation refers to “consensual, and generally more informal, interactions between state and social actors”; and societalization refers to NGO activities that may be tolerated by the state, but in which the state is not a partner6.

Turning to my main findings, examples of formal/legal regulation of private orphanages and foster homes were rare, with just three out of twenty-five managing to attain, after many years of negotiation with various government departments, formal legal status as NGOs. All three characterized the process as highly political, and contingent on personal relationships in the relevant Civil Affairs bureau, and on the organization’s social and political legitimacy. Formal registration was pursued by a number of the private orphanages, due to the perceived practical benefits of registration such as reduced tax liability, permission to fundraise, and legitimacy/security. However registration was not uniformly regarded as desirable, due to the government checks and oversights it also entails. On the contrary, there was a notable lack of concern, particularly among Chinese informants, with achieving formal registration. Informal, flexible and paternalistic negotiations with local officials were seen as the preferred mode of operation.

Almost all of the homes I encountered had built up their work incrementally, beginning as small “under-the-radar” charities run out of family homes (in the case of the foreign foster homes) or by rural underground church groups. However, as their operations expanded to meet local needs, they would inevitably come to the attention of local authorities. Many were subject to hostile “extra-legal” supervision in their early days, for example with unannounced visits from local authorities because they did not have official permission to engage in child welfare work. In some cases, this led to homes being forced to shut down. More commonly, homes would be asked to move to another location. However for the most part, and largely depending on the local political climate, such antagonism would eventually cease, with most homes being left alone after an initial period of scrutiny and suspicion.

Many of the homes reported a steady improvement in relations with local authorities over years or decades of work, despite the technical illegality of their work. At the same time, the interviewees all expressed a clear understanding of the informal rules that governed their relationships with state officials at this local level. They realized their security from harassment, and ability to garner support, depended on maintaining good relations with the local state. The orphanages spoke of the need to assuage government fears of subversive intentions on their part; transparency and openness were generally considered very important when dealing with local officials and village leaders. Further, the homes were all careful to avoid any behavior which could potentially embarrass the Chinese government by drawing attention to the high rates of abandonment in rural China and the role of private organizations in caring for China’s many orphans. Failure to follow these informal norms would bring increased state scrutiny, pressure and restrictions.

Provided these norms were observed, and provided the homes were not engaged in practices such as child trafficking or overt abuse/neglect, the expectation of operators was that their would ordinarily be permitted by local authorities who were exercising local discretion or “turning a blind eye.” Generally, to use an analogy raised by a participant, the homes were gradually trending, over the course of years of operation, from ‘red’ to ‘amber’ to ‘green’ in terms of the perceived state attitude towards their work. As mentioned above, three of the homes, after many years in the ‘amber’ zone, were able to register legally as NGOs, with official, documented permission to care for orphans. The remainder of the homes, operating in the “amber” zone, regularly needed to engage in informal negotiations with the state, since they were operating without legal status. For example, as unregistered organizations, it was frequently problematic for grassroots orphanages to enroll their children (many of whom lacked a residence permit or hukou) in schools without the negotiated support of local officials; homes that were registered as businesses would frequently negotiate with tax officials to avoid paying taxes; some homes were able to circumvent prohibitions on fundraising due to the negotiated approval of local officials. These interactions were generally imbued with a sense of controlling paternalism on the part of the state.

Another key aspect of the local state-society interface in the sector was the societalization of private orphanages. That is to say, many of the homes managed over time to acquire a great deal of social legitimacy, becoming recognized and respected for their care of children. This process was important for two reasons. First, from a practical perspective, all of the homes were dependent on this social capital for survival. The grassroots Chinese-run homes were dependent on local donations to feed and clothe their (often hundreds of) charges. The foreign-run foster homes were similarly dependent on donations from foreign sponsors. Secondly, the practical support and social/political legitimacy an orphanage could receive from other social actors was seen as a means of bolstering its legitimacy in the eyes of local officials, and its security against state interference. The most astute players in the field were proactive in fostering strategic ties, on the basis of their track record in China to date, with politically influential players, such as government-operated NGOs, state orphanages, and central-level Civil Affair bureaus.

The playing out of these state-society relationships was highly dependent on the power and capacity of orphanage operators. For example, many of the grassroots Chinese orphanages I visited were run by untrained nuns of the underground Catholic church. Although some showed an ability to work with local authorities, follow the unspoken rules, and garner support and recognition for their work, many others, especially small and geographically isolated homes, lacked this capacity. It is self-evidently difficult to convince local officials to publicly support and endorse one’s work when the organization lacks transparency, internal standards, staff training programs and adequate finances. If the associated church itself had longstanding antagonistic relations with local authorities, their social/political capital in terms of fighting for recognition and assistance was also affected. Foreigners running foster homes, on the other hand, generally displayed a greater ability to marshal legal advice and professional and media support, and to use their significant contributions to the state welfare system (collectively, a contribution which is now, since the first foster home was opened in the 1980s, widely relied upon and in some cases highly esteemed both socially and politically) as leverage in their interactions with local and central authorities.

This study affirms the multidimensional nature of the interactions between unregistered NGOs and local Chinese authorities. It is common for observers of Chinese civil society to assume that “grassroots NGOs … do not encounter too much interference from the government”, and are not directly controlled in any way by the government in the absence of registration7. However the example of “non-legal” orphanages demonstrates the confluence of informal rules and processes that can exist in a sector beyond the purview of formal law and regulation.

As private orphanages have come about and evolved to fill gaps in the Chinese orphan welfare system, they have necessarily done so cautiously. Most notably, there is a lack of networks among the informal orphanages, and little organized advocacy for orphan welfare reform. The success of homes which have managed to endure years of pressure and scrutiny from local and central officials appears at least to some degree contingent on their willingness to ‘lie low’ and passively acquiesce to an official discourse that grants the state a monopoly on care for orphans and foundlings. The result is a social sphere in which any expansion, growth or impact on other spheres (such as policy, cultural attitudes to charity and the disabled, and orphan welfare generally) is cautious, soft and gradual at best. This feature is noted by researchers in relation to grassroots NGOs more generally8. Still, there is an obvious contrast between the private orphanage sector and other sectors, such as those working on polio9 or HIV-AIDS10, in terms of the overwhelming emphasis on service rather than advocacy, and the lack of mutually supportive networks with defined policy agendas among orphanage NGOs. Nevertheless, the growth of services provided by private orphanages, however cautious, is evident, and arguably an important precondition for the future growth of advocacy and reform campaigns.

  1. Shang, Zhongguo Gu’er Zhuangkuang Yanjiu, Survival Children: A Study of the Condition of Orphans in China, 10 (2008) (the term is used loosely to include children who have been abandoned, and in fact have one or both parents still living). 

  2. Shang et al., Welfare Provision for Vulnerable Children: The Missing Role of the State,  181 China Quarterly. 122 (2005) p. 124. Also known as the ‘Five Guarantees’, ‘this is a rural community-based welfare system that provides the five guarantees of free food, clothes, fuel, health services, and education’ including for ‘orphans who are not only unable to look after themselves but also have no one legally responsible for their welfare’: Shang, “Looking for a Better Way to Care for Children”, Social Service Review Vol. 76 No. 2 (2002), p. 206. 

  3. The survey results are reported in Shang, Zhongguo Guer Zhuang Kuang [Survival Children: A Study of the Condition of Orphans in China] (Beijing: Social Sciences Academic Press, 2008), at pp. 10, 26. See, generally, Anna High, China’s Orphan Welfare System: Laws, Policies And Filled Gaps, 8(2) East Asia Law Review. 127. 

  4. High, China’s Orphan Welfare System, id. 

  5. Shawn Shieh, “Beyond Corporatism and Civil Society”, in Jonathan Schwartz and Shawn Shieh (eds.), State and Society: Responses to Social Welfare Needs in China (London: Routledge, 2009), p. 23. 

  6. Shawn Shieh, “Beyond Corporatism”, p. 23. 

  7. Xiaoyuang Kang and Han Heng, “Graduated Controls: The State-Society Relationship in Contemporary China”, Modern China, Vol. 34 (2008), p 48. 

  8. See Yiyi Lu, “NGOs in China: Development Dynamics and Challenges”, in Zheng and Fewsmith, China’s Opening Society, p. 98; Ashley and He, “Opening One Eye”, p. 83. 

  9. Kohrman (2005). 

  10. See, for example, China Development Brief, ‘AIDS: Anger and Recrimination Block Progress in Henan’ (Beijing 14 January 2008) <http://www.chinadevelopmentbrief.com/node/1276> accessed 3 June 2011. 

Visiting Assistant Professor at Marquette Law School, Milwaukee, Wisconsin.

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