The Criminalization of Distress: The Government’s Response to Foundlings in the Postwar United States

Scores of children filed out of a building on 68th Street and Lexington in New York City on a bright spring day in 1958. The gathering included dozens of infants who were cradled by a small army of nurses, physicians, and nuns belonging to the Sisters of Charity. With “military precision,” as one report described it, this unusual street gathering did exactly what they had rehearsed for days: they walked a block and half and entered another building.¹ Following this short but nerve-wracking parade, the move of the New York Foundling Hospital from its original home to its new facility was complete.

The relocation to a larger and better-equipped building was destined the day the New York State’s Department of Welfare listed the old New York Foundling Hospital as a fire hazard, a fact that had long been known, but one that inspectors had previously left for discreet hectoring of the Sisters of Charity in annual reviews. In the postwar era of professionalized social work, the Foundling Hospital faced new pressure to perform “up to code.” Moving to its new location marked only one aspect of the hospital’s efforts to meet the increasingly elaborate expectations of New York State. New requirements of different kinds strained the Foundling at the very moment that the hospital found it more difficult to fulfill its mission. More babies, and, owing to changing city demographics, more babies who were African American or Puerto Rican, made it much harder to place Foundling charges in the hospital’s network of white ethnic family homes. In many ways the parade down Lexington Avenue signaled much more than a change of address; it symbolized the institution passing from the provincial arms of largely Catholic supervision to a Department of Welfare more apt, in the resentful words of one Foundling report, to see the hospital as “an agency owned by them.”²

As regulations strapped the nation’s largest child-care institution, state legal codes had revised criminal statutes on abandonment from a misdemeanor that was difficult to prove into a more closely written statute, usually with two components: a parent who surrendered an infant to chance (abandonment), and a parent who absconded and failed to support his family (desertion). Revised codes specified time intervals and types of contact between parent and child that clarified the law and enhanced the ability to charge parents with either crime. While these changes were presented as a way to punish fathers who deserted their families and crossed state lines to avoid obligations to dependents, they had the effect of strengthening the criminal penalties of abandonment as well. Significantly, this latter charge was enforced with particular attention to mothers who received support from the federal welfare program, Aid to Dependent Children (ADC).³ Since mothers often did not flee jurisdiction, and because mothers who received support from the state were monitored more closely than wage-earning males, a disparity in likely apprehension accompanied these dual revisions in the code, resulting in a gender inequity. Viewed in the institutional context surrounding these changes, it is possible to make a different but related set of points regarding how this increased punishment of infant abandonment constituted, in effect, a functional transfer from private institution to criminal law. Whereas the Sisters of Charity (and other religious communities like it) had once presided over the response to abandonment, the state, and in particular its legal codes, now set the terms of both the perception and practicality of abandonment—or, as it has been known for ages, “exposure.”

Throughout history, abandonment has been a common practice, though not one that was well documented. Historian John Boswell produced an authoritative history of premodern exposure that takes a sweeping approach from Antiquity to the Renaissance. Doing so enabled him to make a number of claims that still resonate, including: abandonment occurred for a number of reasons, and was not considered by parents or observers to be equal to infanticide; and, significantly, “[m]ost ethical systems … either tolerated or regulated it.”⁴ Other academic treatments of...