Foundlings

FOUNDLINGS. - They are the children of an unknown father and of a mother who does not consent to being named, entrusted to the care of the community (State and province) in a foundling hospital.

In the Greek world there were two terms: « ἔκθεσις », which indicated the exposure of the child made in a public place so that it might be taken up by others, also called ἐντιμισμός = impentolamento, from the pot-shaped vessel in which it was ordinarily done; and « ἀπόθεσις », which was the true and proper abandonment of the creature without concern for its life.

The Romans, on the other hand, by the word exponere meant the fact of abandonment, without concern for the intention of the one exposing. Today the term is reserved, as has been said, for children entrusted to specially appointed hospices, called foundling hospitals. Exposure is therefore something different from the pure and simple abandonment of infancy. The phenomenon of the exposure of offspring is a painful reality that accompanies the fortunes of humanity itself and historically is confused with abandonment. Some figures of Greek mythology begin their appearance by figuring as exposed children saved from death, and the very legend of the founding of Rome by Romulus and Remus, two exposed children, shows us that from the beginning of Roman society exposure was permitted.

In practice and in Roman law, this falls within what is the right of life and death of the pater familias. In Rome there was also a place particularly indicated for exposing "children," the Forum Olitorium, where the columna lactaria stood: often, however, newborns were exposed on the banks of the Tiber and at the doors of temples. The exposed child was generally called alumna, at least if it survived.

The juridical condition of the "alumni," although similar to that of slaves, was in itself intermediate between that and the condition of the free. Simple derelictio was never considered as loss of ownership, so that the foundling juridically remained a free person: in practice it became the property of whoever took it in. A mitigation of the scourge of exposure came about through the work of imperial public charity. But it was above all the Fathers of the Church and the councils that fought the custom of exposure as contrary to nature, beginning with the first apologists (St. Justin, I, Apol., 27: PG 6, 370; Athenagoras, Leg. pro Christ., 33: ibid. 6, 970). The councils established sanctions against those guilty of exposing children and issued practical provisions in favor of exposed children (cf. Council of Vaison, cann. 9-10, a. 442, Second Council of Arles, can. 51, a. 452: Mansi, VI, 455, 884). At the same time the Church began the work of rescuing exposed children.

"We," says St. Augustine, "through our virgins gather up those little children whom their parents cruelly exposed" (Epist. 98: CSEL, XXXIV, p. 527).

The influence of Christian thought made itself felt in legislation. Constantine, wounding the Roman principle of patria potestas, by the constitution of Apr. 331 establishes that whoever has taken in and maintained an exposed child may keep it in the condition of a son. Through successive interventions in the matter by Valentinian, Valens and Gratian, one arrives at Justinian, who grants exposed children perfect liberty, freeing them also from the servile condition in which they may have been born (Cod. Iust., IV, 24; VIII, 51 [law of 520]; Nov. 153 [a. 541]). This constitution regulated the juridical position of exposed children until the appearance of modern codes.

Later, in order to provide for the rescue of exposed children, foundling hospitals were founded by ecclesiastics (v.). Here at first were sheltered infants truly abandoned: later, with the introduction of the wheel, children whom mothers did not wish to raise were accepted with the guarantee of secrecy. This organization was destined solely to provide for the salvation of the child, protecting it from prenatal and postnatal dangers on the part of the parents. Owing to special historical conditions, exposed children were considered legitimate.

The whole work in favor of exposed children was carried out by religious institutes under the impulse of the Church. It was only during the 17th-19th centuries that national States also took over the foundling hospitals, considering them goods of the Church. New reforms were immediately begun that led to the abolition of the wheel in foundling hospitals, without however changing the problem of exposed children.

At present, exposed children are illegitimate children deposited at the foundling hospital and by legal fiction considered as children of unknown parents; assimilated to these are children found in a state of real abandonment.

Civil laws are divided into two groups with regard to exposed children: one group of legislations does not admit them (Germany, Switzerland, Scandinavian countries, England, U.S.A., Japan...), but every mother must acknowledge her own child; the other group admits them (Italy, France, Spain, Holland...), leaving the mother free to acknowledge or not acknowledge her child.

The practice of the Church, which created the foundling hospitals, currently tends to eliminate the figure of exposed children by working to persuade the mother to acknowledge her illegitimate offspring, giving it a name and maintenance, always saving, as is natural, the rights of family integrity. The constitution of the Italian Republic (art. 30) also seems to take this position. The exposure of offspring in the modern sense, not to speak of absolute abandonment, is in itself always unlawful, unless motives of a higher order, such as the integrity of the family or of society, justify it. V. INFANZIA ABBANDONATA.

Vittorio Maconi