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Women Build the Welfare State
PERFORMING CHARITY AND CREATING RIGHTS IN ARGENTINA, 1880-1955
By Donna J. Guy DUKE UNIVERSITY PRESS
Copyright © 2009 Duke University Press
All right reserved. ISBN: 978-0-8223-4347-9
Chapter One
Female Philanthropy and Feminism before the Welfare State FAMILY LAW AND THE POLITICS OF NAMES
Before Argentina's independence from Spain, orphaned children were cared for by male and female members of religious organizations. Following independence, however, secular women began to replace or to supervise female religious members, and as early as 1823 liberal reformers acknowledged their reliance on unpaid female philanthropic work. Thus modern female philanthropy in Argentina appeared with the formation of the modern nation-state.
The Argentine version of liberalism, however, severely restricted the custody rights of married women over their own children at the same time that it acknowledged and subsidized the Society of Beneficence. How could feminists overcome patriarchal laws so that married women had custody rights over their children, and what role did female philanthropists play in this process? Upon first glance, such outcomes might seem unexpected given the strong legal position of fathers and husbands, both in a private sense and a public one. The women who joined the organizations dedicated to child welfare and feminist causes could not until 1947 rely on female suffrage. Nevertheless, by that time women, particularly single mothers, had been accorded many rights earlier denied to them, and they had been providing child welfare facilities for more than one hundred years. Both feminists and female philanthropists played crucial roles in the expansion of women's legal rights over children.
The legal status of women in Argentina, inscribed in the first civil code in effect after 1871, accorded married women few legal rights within the family. Judges and the police always suspected that unwed mothers acted irresponsibly or immorally, and their children suffered the stigma of illegitimacy if the father refused to recognize them. Only legally married mothers could protect their legitimate children with access to equal inheritance and a mandated right to receive clothing, food, and shelter from the family patriarch. Married women, however, had difficulty obtaining redress for grievances and exercised no custody rights over their children. If they were so poor that they could declare themselves paupers, married women could take irresponsible but legitimate fathers to court to demand food for themselves and their offspring. These legal realities provided the rationale for female philanthropists as well as feminists to demand that the government, either local or national, do more to provide women with the legal apparatus to protect themselves and their children.
Early legislative efforts to modify the legal status of married women tried to give women more financial powers within the family. Proposed at the beginning of the twentieth century, these efforts had little support. Yet just before the proposals reached Congress, the feminist Elvira López published a document, El movimiento feminista [The Feminist Movement], in which she argued that financial restrictions formed only part of women's complaints of inequality. Women of all classes suffered from restrictions placed on married women, and in 1910 Elvira Rawson de Dellepiane drafted the first feminist proposal to revamp the Argentine civil code; the successful 1926 revision of the code incorporated some of her suggestions. Nevertheless, women had to wait until the 1980s for shared parental custody over their children.
In contrast to the letter of the law, mothers contested their presumed powerlessness. Rather than go to court, they used long-standing cultural practices to deal with the burdens and stigmas of motherhood. For example, women unable to control their children's behavior, those who found the economic burdens of frequent pregnancies too onerous, or mothers with children born out of wedlock all turned over their offspring to others during difficult moments. This could be accomplished in three ways. The first involved infant abandonment and usually resulted in separating mothers and children forever, or for years at a time. The second, less draconian, way was through infant circulation practices in which mothers gave children to other family members or strangers in the hope that they could give better care to the child. Finally, mothers could place older children in apprenticeships or let them fend for themselves by working on the streets. Sometimes the threat of maternal abandonment proved sufficient to lead an errant father to declare paternity. If not, the women had few alternatives. Philanthropic women and feminists tried to stop these practices by supporting campaigns for legal changes that mandated a family wage, enabled women to take men to court for paternity, and provided child care for working women. Philanthropic women opened mothers' canteens where mothers and their children could eat. They also ran most of the orphanages that accepted infants.
Both religious and municipal institutions promoted infant abandonment. From the late colonial period until 1892 a foundling wheel or turno, a practice utilized in many European countries by secular and religious institutions, operated at the foundling home in the city of Buenos Aires. Unwanted children, usually newborns but even occasionally dead fetuses discarded by parents, found their way onto this wheel, which gave the donor complete anonymity. The wheel and the practice of abandoning newborns on the doorsteps of the wealthy or politically important figures offered mothers the hope that the child might find a better life and avoid the public scandal of illegitimacy or poverty. These measures of desperation formed a consistent pattern of behavior in eighteenth- and nineteenth-century Catholic countries.
The second method, recirculation, was far more informal and less visible. Parents often asked grandparents, aunts, and even female friends to help with a new child, which meant that female volunteerism operated not only at the institutional level but also within the world of informal child circulation. Under this informal system, an informally adopted child could not become a legitimate sibling within the household. Furthermore, biological parents often requested the return of their children and turned to the courts to demand their parental rights. Adoptive and foster parents thus operated on shaky legal grounds. After political reforms of the 1880s instituted the civil registry of births and deaths, falsification of these registers often served to legitimate the last names given to children adopted in this informal way. After all, children's surnames defined status and community links in Argentina not only for the native born but also for children of immigrants.
Abandoned infants designated as N.N. [ningún nombre, or "no name"] became rooted in the politics of names and the society's desire to hide the stigmatic origins of children or eliminate unacceptable families. The history of social policies that led to the welfare state in Argentina began as public and private charity that provided the only protection between life and death through the "kindness of strangers."
In Buenos Aires and throughout Argentina, children deprived of identities ended up in orphanages. Their baptism accorded them two first names but no last name. Some only had matriculation numbers for last names; others appended the surname of their foster parents if so permitted. Those with no last names suffered perpetual embarrassment because the circumstances of their birth were identified in their national identity cards, which were handed to officials upon matriculating in school, serving in the army, getting married, or engaging in any other activity that required state identification. To use as a last name, many chose the term expósito [foundling].
The politics of names directly related to patriarchy and any effort to promote a welfare state in Argentina had to deal with this reality. The basic structure of patriarchy, fatherhood, and motherhood, all embedded in the concept of patria potestas, or patria potestad [patriarchal control and custody], formed an essential part of European and religious family legal codes. Patria potestad gave all power and responsibility for children to the legal father. Without a legal father, an unmarried mother could exercise these rights and responsibilities unless she was deemed immoral by public authorities. The only absolute authority of mothers over their children resided in the milk that came from their breasts. Thereafter, custody of their children reverted to men. For unmarried mothers, links to their offspring did not provide them with the obligation to recognize their newborns. This legal reality spurred infant abandonment, as did the colonial Spanish laws that permitted adoption for families with no children.
The fluid period between independence in 1810 and the rather tardy passage of the 1869 civil code enabled some Argentine provinces to permit adoption. For example, in 1869 Juan Bernard and Catalina Pirovano adopted a fifteen-day-old infant named María Teresa Lázare. According to María Teresa's biological father Enrique Ansaldo, the existence of the legal document prevented him from claiming his patriarchal rights over the child until 1883. At that time the adoptive couple separated and the father left home, leaving the wife and adopted daughter with few resources. Ansaldo went to court demanding patria potestad and accused the adoptive parents of immoral acts that led to their separation. The nonbiological parents claimed that the adoption had its roots in medieval Spain's legal code, the Siete partidas [Seven Parts], which under the Fourth Part allowed for fijos porfijados [adopted children]. Ansaldo, hoping to get his child back, preferred to rely on the provisions of the new civil code that did not authorize adoption. The court, however, upheld the adoption, and María Teresa's biological father never regained his patria potestad. The code's author, Dalmacio Vélez Sarsfeld, ironically justified the absence of adoption laws with the view that Argentines did not practice adoption.
The new Argentine nation-state drew on Germanic, French, Canon, and Roman legal traditions to define the legal family for purposes of inheritance and the maintenance of social order embedded in patriarchy. The civil code, as well as the penal code of 1886 and the commercial code of 1861, regulated legal families. Collectively they reluctantly modernized colonial paternal authority by reducing the age at which children reached majority so that children could enter the workforce at earlier ages. Nevertheless, the law still limited legal protection to legally constituted families, prohibited paternity suits by single mothers, and defined power within the family to be specifically male unless there was no legally recognized father. The earlier commercial code, as well as the subsequent penal code, placed additional restrictions on male patriarchs by allowing married and single women and minor children to engage in commerce, and by adding longer prison sentences to punish relatives who sexually abused children. They did not resolve the question of adoption or that of child abandonment. Only when no male head of household could be identified did the laws consider the legal rights and responsibilities of mothers.
Despite these advances over colonial laws, social realities prevented parents from protecting their children because, well into the twentieth century, many poor families formed without the benefit of marriage. Although Buenos Aires boasted relatively low illegitimacy rates, illegitimacy became the common condition of newborns in the interior provinces. Furthermore the new codes prevented some fathers from exercising their rights as fathers and did not value the role of mothering. Such circumstances led illegitimate and poor infants and older children, many of whom had no last names, to be abandoned in the streets or institutionalized in jails, reformatories, and orphanages.
The consequences of having no last name could be brutal. One such tale comes from the city of La Plata in the province of Buenos Aires in 1926 when the foster mother of a child, "Ana" M., after waiting twenty years for her husband to give the girl the family name, finally wrote to the head of the Society of Beneficence. She asked permission to add her husband's name to that of her daughter so that the girl did not have to face the stigma of having only a matriculation number for her last name. Recognizing the importance of this legal act in the absence of legal adoptions, Magdalena B. de Harilaos, head of the Society, immediately authorized the organization's General Registry of Children to append the name without direct permission from the foster father. This maneuver, in effect, constituted the only form of adoption at the time outside of falsifying the national civil registry.
A third method of dealing with children, one generally considered a temporary solution, came when a working mother encouraged her youngsters to work or play on the public streets. Sometimes these children chose to return home, but others simply lived on the streets. Predominantly older minors, these highly visible street children might have been deemed capable of fending for themselves. But to many in Argentina, children working and playing on the streets conjured up images of immorality and political danger.
Just what did Argentine law offer to mothers of street children, orphans, and other waifs? Not much. Instead it clarified the duties and privileges of parents and guardians in such a way that excluded most women. For example, the law allowed only adult men to serve as legal guardians, or tutores. According to article 398 of the civil code, the blind, the deaf, the mentally unstable, jailed felons, debtors, the clergy, people with residences abroad, and all women, with the exception of the widowed and grandmothers, were prohibited from exercising this legal authority.
Only the Ministerio Público de Menores [Public Ministry of Minors], the male-controlled institution that consisted of the municipal defenders of minors, was authorized to provide services for children in need and on the streets. Defenders had the right to assign male tutors and participated in all legal matters that affected any child with a guardian. In reality, this role proved impossible to fulfill given the small number of defenders responsible for the large number of children adrift in Argentine cities. Experts often calculated that ten thousand waifs were adrift in turn-of-the-century Buenos Aires. This problem might have been solved through foster parenting, but few men offered to serve in this role and married women could not offer foster care without the permission of their husbands.
Three choices for helping children became available to Argentine authorities: expand the system of child welfare, allow married women to be guardians, or privatize the problem by permitting adoption. Complete adoption would have given married women more control over adoptive children than their own offspring, thus making it difficult to pass such a law. Adoption challenged inheritance laws and potentially enabled non-biological heirs to inherit the same wealth and status as biological children. The option of expanding child welfare thus proved to be an ideal temporary solution, and in response groups of philanthropic women and male legal specialists set about to solve the illegality of adoption and the very restricted rights of mothers.
(Continues...)
Excerpted from Women Build the Welfare State by Donna J. Guy Copyright © 2009 by Duke University Press. Excerpted by permission.
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