Abstract
This article presents a socio-legal analysis of the care of orphaned and other vulnerable children in China, reviewing law, policy and practice relating to state and non-state orphanages and foster homes. The analysis is first contextualized by an introduction to the demographics of children cared for in state and non-state welfare institutions; prevailing social and cultural attitudes to their rights and entitlements; and the complex nexus between the politically high-stake issue of birth planning and the arguably consequent vulnerability of such children. The article then introduces formal laws and policies relating to the care of orphans, including government duties and responsibilities towards this vulnerable population. The findings of empirical fieldwork carried out in China examining the role of “non-legal,” unregistered and unrecognized non-state actors/NGOs in filling gaps left by the formal state orphan welfare system are then presented. Although the Chinese government claims to take responsibility for orphans, and ostensibly monopolizes the running of orphanages, it is failing to recognize, regulate or oversee the prolific number of private orphanages that have emerged in the last three decades in response to perceived gaps in state-provided services. The emergence of unregulated non-state orphanages, and the gap between child welfare laws and policies, on the one hand, and practice on the other, has resulted in lines of stratification being drawn among Chinese orphans in terms of their access to care and adoption prospects. The implementation of clearer policies, and improved access to formalized state support for the currently informal non-state sector, are needed to promote better outcomes for vulnerable children and caregivers alike, as well as to better guard against sub-standard practices and neglect of orphans.