On the need to use baby boxes in Russia and other countries

Purge Anna Rolandovna PhD in Law Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, office 5502 a.purge@mail.ru Other publications by this author

The operation of baby boxes is widely used today in a number of foreign countries (in particular, in Austria, Belgium, Germany, Italy, the USA, Switzerland, the Czech Republic, Japan, Poland), as well as in certain regions of Russia (in particular, in the Perm Region, Moscow Region, Vladimirovskaya Region, Krasnodar Territory, Kursk region, Leningrad region, Pskov region, Kamchatka Territory, Kaliningrad Region, Sverdlovsk region).  The problem of the lack of legal regulation of the practice of using baby boxes in Russia and in foreign countries has repeatedly become an independent object of scientific understanding by a number of domestic legal scholars. This is evidenced, in particular, by scientific articles by the following authors: N.V. Varaksin (2020), I.S. Danilova (2023), E.M. Karelin (2017), M.A. Kondrashov (2016), A.V. Roldugin (2017), as well as some others, however, it should be noted that Today, dissertations for the degree of candidate or Doctor of Law are devoted to the development of the chosen research topic, which indicates the low degree of its scientific elaboration in the doctrine and emphasizes its relevance. 

Among the main legal and social reasons for the emergence and spread of the practice of using baby boxes in a number of foreign countries and in certain regions of Russia, the following can be identified and analyzed:

1 The need for the fulfillment of international legal obligations on the part of the States of the world.

Thus, Article 3 of the Universal Declaration of Human Rights of 1948 proclaimed the right of every person, including every child, to life. At the same time, children's lives are subject, in accordance with international legal regulations, to special protection and protection by the State (Part 2 of Article 25 of the Universal Declaration of Human Rights of 1948, part 1 of Article 24 of the International Covenant on Civil and Political Rights of 1966, Article 10 of the International Covenant on Economic, Social and Cultural Rights of 1996 The preamble to the Declaration on the Protection of the Rights of the Child of 1959). Part 2 of Article 6 of the Convention on the Rights of the Child of 1989 also enshrines the obligation of States to ensure the maximum possible degree of survival of every child born and/or living on their territory.

Those States that are parties to the above-mentioned international legal acts have undertaken obligations to bring their current national legislation into line with international legal principles and regulations in the field of protecting the rights and interests of children, including in terms of ensuring and protecting their right to life and health. In this regard, the Constitutions of a number of foreign countries, in which the practice of using such structures as baby boxes is currently widespread, have proclaimed the right of every person, including every child, to life as the highest value of the state.

In particular, for example, the provisions of Amendments IV and V of the US Constitution of 1787 (as amended by the Bill of Rights of 1789) enshrine the right of every person to personal protection and life protection in various circumstances, including when the state implements criminal prosecution against him.

Part 1 of Article 6 of the Constitution of the Czech Republic of 1992 also enshrines the right of every person, including every child, to life. At the same time, it is emphasized that human life deserves protection from the state even before the birth of the person himself. And in part 1 of Article 32 of the Constitution of the Czech Republic, it is additionally stated that children are subject to special protection and protection by the State. Similar provisions on the right to human life, as well as on the particularly enhanced protection of children, are enshrined in Part 1 of Article 15, Part 1 of Article 41 of the Constitution of the Slovak Republic of 1992. In accordance with Article 93 of the Constitution of the Republic of Latvia of 1922, the right to life of a person, including a child, is protected by law.

In turn, according to Article 2 of the Constitution of the Russian Federation, human and civil rights (including children) are recognized as the highest value on the territory of the Russian state, and their observance and protection is the main responsibility of the latter. In Part 1 of Article 20 of the Constitution of the Russian Federation, the right to life is recognized as an inalienable and inalienable personal right of every person, including a child, and in Part 1 of Article 38 of the Constitution of the Russian Federation, the duty of the state to protect motherhood and childhood is proclaimed, and therefore Russia is obliged to ensure the maximum possible degree of survival of children on its territory by introducing various socio-economic measures.

The use of baby boxes on the territory of these countries has become a kind of additional way to protect and protect the right of every child to life, in accordance with the constitutionally proclaimed provisions and principles of international law in the field of protection and protection of human rights, the institution of childhood. However, back in 2014, the UN Committee on the Rights of Children, in its concluding observations on the combined fourth and fifth periodic reports of the Russian Federation, CRC/C/RUS/CO/4-5, noted that Russia, as well as a number of European countries, misinterpreted the provisions of the Convention on the Rights of the Child of 1989, introduced the practice of using baby-boxes on their territory, not taking into account the fact that the anonymous refusal of parents to raise a child violates a number of other provisions of the specified international legal act. So, in particular, the use of baby boxes in which mothers can anonymously leave their newborn children violates Part 1 of Article 7 of the Convention on the Rights of the Child of 1989, according to which every child has the right to know his parents, as well as part 1 of Article 9, according to which the child should not be separated from by their parents, except in cases expressly provided for by national legislation in order to ensure the safety of life and health of the child himself ^[1]. Earlier, in 2011, the UN Committee on the Rights of the Child gave similar recommendations on ending the practice of using baby boxes in relation to other Western European countries, for example, in relation to the Czech Republic ^[2].

By the way, the position of the UN Committee on the Rights of the Child has found its recognition among representatives of domestic and foreign legal doctrine. Thus, S. Evans, being an opponent of the use of baby boxes, noted that this leads to a violation not only of the conventionally proclaimed right of the child himself to know his own origin, but also of the rights of his father, grandparents to his upbringing and communication with him, since the latter may never even know about the birth of a child, with to whom they have a biological relationship ^{[3, p. 1]}. E.A. Elina also points out that the practice of using baby boxes not only contradicts international legal regulations in the field of protection and protection of children's rights, but also violates the rights of fathers to raise their children, placed anonymously by their mothers in baby boxes without with their knowledge and consent ^{[4, pp. 137-138]}. V.I. Kovalevsky, in turn, writes that the practice of using baby boxes in Russia and a number of Western European countries is not only immoral, but also anti-legal, violating the provisions of Articles 7, 9 of the Convention on the Rights of the Child of 1989, and There are also similar prescriptions of Part 2 of Article 54 of the Family Code of the Russian Federation ^{[5, p. 1]}. N.V. Varaksina and O.Y. Maslova give similar arguments to substantiate their position ^{[6, p. 5]}.

And yet, in our opinion, one can hardly fully agree with such a categorical view. We believe that N.V. Ustinova's argument is quite fair that the child's right to life is certainly a priority in relation to the right to know his origin, and it is much more important to create guarantees and mechanisms to ensure his protection and protection ^{[7, p. 59]}. In addition, the argument about the violation of the child's right to know his origin when using a baby box naturally and logically determines the emergence of another question: is the secret of adoption, which operates at the legislative level in a number of Western European countries and in Russia (Article 139 of the Family Code of the Russian Federation, excluding a child's access to information about his biological parents), does it violate the provisions of Articles 7 and 9 of the Convention on the Rights of the Child of 1989? Indeed, with regard to Russian legal reality, the Constitutional Court of the Russian Federation clarified in 2015 that an adopted child can be given access to information about his biological parents only if he has a significant interest in it, which must necessarily be established in court ^[8] (for example, the presence of such an interest was established in 2018, the Supreme Court of the Russian Federation, due to the risk of an adopted child and his children developing severe genetic diseases in the future, since maintaining the secrecy of adoption in this case violated his right to provide high-quality, highly qualified medical care ^[9]). In turn, speaking about the countries of Western Europe in which the secret of adoption established by law operates, we note that the European Court of Human Rights has repeatedly stressed in its decisions that the issue of ensuring access of adopted children to information about their biological parents should be resolved at the discretion of the national legislator, since with any of the chosen approaches the rights of either a child (the right to know their origin) or a woman who has renounced it (the right to privacy) will be violated, and therefore the state itself is called upon to find a balance of interests here. It turns out that the use of baby boxes is not the first such precedent when, in order to ensure a balance between the interests of parents and children, while simultaneously protecting their rights proclaimed at the international legal level, a deviation from the provisions of the Convention on the Rights of the Child of 1989 is actually allowed. Nevertheless, to this day, the secrecy of adoption has not been abolished at the legislative level, and the adopted child's access to information about his biological origin is strictly limited, which also indicates the possibility of ensuring legislative regulation of the use of baby boxes, even if the anonymity of the mothers who placed the child in it is preserved. Indeed, in the latter case, the legislator will proceed solely from the balance of interests of both his biological mother and the child himself: firstly, the mother is not deprived of the opportunity to regain her child, but if this did not happen, it is unlikely that communication with such a mother will have a beneficial effect on the child, since the coercion of a woman by punitive methods from the outside the state of taking care of her child will not return her maternal instinct and will not make the child feel loved and desired.

2 The need to reduce the number of murders by mothers of their newborn children, leaving them in danger, due to the occurrence of reactive postpartum depression in mothers or due to other difficult life circumstances that prevent them from exercising their parental rights and independently raising and maintaining children.

The first baby box in Russia appeared and actually began to function in 2011 on the territory of Perm ^[10]: the introduction of the practice of its use was predetermined by the increase in the number of murders of newborn children committed by mothers in the years preceding this event. Thus, according to the reporting statistics published on the official website of the Ministry of Internal Affairs of the Russian Federation, 103 crimes under Article 106 of the Criminal Code of the Russian Federation were registered in 2010 ^[11], and 108 in 2011 ^[12]. It was in order to prevent the number of infanticide against newborns, and, as a result, save their lives, that the domestic legislator allowed the introduction and subsequent use of baby boxes, based on the successful experience of foreign countries. This, in particular, was indicated somewhat later in the contents of the explanatory note to Draft Law No. 345593-7 "On Amendments to Article 10 of the Federal Law "On Basic Guarantees of the Rights of the Child of the Russian Federation" and to Article 19 of the Federal Law "On Acts of Civil Status" ^[13], submitted to the State Duma of the Russian Federation in December 2017.

By that time, baby boxes were already widely used in various foreign countries: for example, in Germany they had been operating since 1999, in Hungary since 1997, in Latvia since 2009, in Slovakia since 2004, in Japan since 2011, in the Czech Republic since 2005 in the USA – since 1999 ^{[7, pp. 57-58]}. The introduction of the practice of using baby boxes in these countries at that time was also predetermined by an increase in the number of murders by mothers of newborn children: for example, in 2005, the Prosecutor General's Office of the Czech Republic recorded an increase in the number of murders of newborn children by their mothers (in one case, a mother wrapped a newborn child in a plastic bag so that he suffocated, and left on the riverbank in the bushes ^[14]). It should be noted that the practice of using baby boxes has nevertheless yielded positive results: for example, by 2019, 200 children were rescued in Russia ^[15], and 260 babies in the Czech Republic ^[16].

Meanwhile, considering that the practice of using baby boxes in Russia and in a number of foreign countries has not become widespread, in particular, due to the lack of its comprehensive and detailed legal regulation, the problem of mothers killing newborn children, nevertheless, persists to this day. Thus, according to the reporting statistics published based on the results of monitoring judicial practice, only in the past period of 2022 in Russia, 27 women were convicted of committing a crime under Article 106 of the Criminal Code of the Russian Federation (murder by the mother of a newborn child) ^[17].

For example, in July 2020, the Luz District Court of the Kirov region convicted a woman, the mother of a newborn child, who killed him under the following circumstances: after giving birth to a child in her apartment, she squeezed his neck, thereby depriving oxygen access to the baby's respiratory organs, and held him in this state until the latter stopped show signs of life. As follows from the materials of the criminal case, the mother decided to commit a crime as a result of reactive postpartum depression, as well as a difficult financial situation ^[18]. In July of the same year, 2020, a mother woman was convicted by the Yessentuki City Court of the Stavropol Territory for attempted murder of a newborn child, who, having spontaneously given birth to a child while in the toilet of a store, acting under the developed reactive postpartum depression, decided to kill her newborn child in view of her own difficult financial situation and the unwillingness of the child's father to accept to participate and assist in his upbringing. To this end, the woman packed the newborn child in a plastic bag, tied it tightly, took it outside and left it in the bushes, however, the crime was not over for reasons beyond her control, as the newborn child was discovered and saved by a passerby ^[19]. A lot of criminal cases initiated in recent years on the fact of committing crimes under Article 106 of the Criminal Code of the Russian Federation in 2023 have not yet been sent to court: for example, according to the materials of one of the initiated criminal cases, on October 8, 2023, a resident of the Kezhemsky district of the Krasnoyarsk Territory independently gave birth to a viable child, without contacting the a medical institution, after which she dumped the newborn into the cesspool of an outdoor toilet, as a result of which the latter died ^[20]. At the same time, we note that the number of women who killed their newborn children decreased almost 5 times from 2011 to 2022 (from 108 to 27, respectively), which still indicates positive results of the practice of using baby boxes in certain regions of the Russian Federation).

In addition, we must not forget that mothers who have given birth to children in a difficult life situation, who are in a state of postpartum depression, do not always kill newborns, they often simply leave them in danger, throwing them at the doors of maternity hospitals, children's clinics, orphanages, children's rehabilitation centers, not taking into account the insecurity of weather conditions for life and the health of infants, as well as the risk that they may be "picked up" by a mentally ill person capable of committing a crime against them (for example, murder, another crime against the sexual integrity of a minor). The criminal legal qualification of such actions by mothers is controversial in practice: in some cases they are qualified as leaving a newborn in danger, and in other cases as attempted murder. So, in March 2022, the Investigative Committee of the Russian Federation opened a criminal case on the fact of committing a crime under Part 3 of Article 30, paragraph 2 of Article 105 of the Criminal Code of the Russian Federation (attempted murder of a minor) against a woman who intentionally left a bag with her newborn child on the street in the cold ^[21]. In another case, in July 2019, the police opened a criminal case against the mother of a newborn child on the fact of committing a crime under Article 125 of the Criminal Code of the Russian Federation (abandonment in danger), who left him on the street at the entrance ^[22]. And there are many such cases in Russia, as well as in Europe, every year, and therefore the introduction of the practice of using baby boxes is predetermined by the need to exclude (reduce) the number of cases in which unwanted, unnecessary babies are simply thrown into entrances, under the doors of various bodies, organizations and institutions, as well as into garbage cans and garbage pipelines (for example, in January 2022, the police found a newborn baby in a dumpster in Pardubice, Czech Republic ^[23]).

3 The need to reduce the number of cases of abuse of unwanted children by their parents, as well as their being in a dangerous position in difficult life situations.

Fortunately, mothers and fathers who are in a difficult life situation at the time of the birth of their children do not always make the decision to kill them or leave them in danger. It is not uncommon, both in Russia and in a number of foreign countries, when, without renouncing their parental rights in relation to unwanted and unloved children due to possible public censure, without intentionally depriving them of life, they subsequently commit cruelty during their upbringing, subjecting them to systematic beatings, torture and humiliation. Thus, according to statistics from the UN Committee on the Rights of the Child, published in a report in 2020, every second child in the world (that is, approximately one billion children) is subjected to domestic violence every year ^[24]. In turn, according to statistical data collected on the basis of the Investigative Committee of the Russian Federation, 10,745 criminal cases of violent crimes committed against minors were sent to the courts in 2022 alone ^[25]. And this, as N.V. Ustinova notes, in the conditions of modern realities, when children's rights are especially protected and protected all over the world, in particular, due to the vigilant control of educational and medical institutions: it is obvious that in the 2000s a huge number of cases of domestic violence against children remained undetected, unfixed at all (however, the latency of child abuse is also characteristic today), which partly predetermined the introduction of the practice of using baby boxes both in Russia and in a number of foreign countries ^{[7, p. 56]}.

Meanwhile, given that the practice of using baby boxes in the world to this day is not widespread, the problem of child abuse, the birth of which was undesirable for their parents due to their moral unpreparedness for this or difficult life circumstances, persists both in Russia and in foreign countries. So, in March 2023, in the Khabarovsk Territory, a woman who systematically bullied her one-year-old son once again beat him, causing injuries incompatible with his life, as a result of which the child died. During the interrogation, the accused explained to the investigator that she disliked the child from the moment of his birth and dreamed of getting rid of him, but was afraid of public censure ^[26]. In February 2024, a criminal case was opened in the Altai Territory on the fact of torture of a newborn child by his mother, committed during their joint stay in November 2023 in a rehabilitation center for women in a difficult life situation: the investigation found that the child's mother repeatedly subjected him to beatings and other violent acts of a non-sexual nature ^[27]. In turn, in Austria in 2023, a crime was committed by the child's mother against the latter: a woman systematically beat her son, starved him, subjected him to various tortures, chained him in a cage, exposed him to the cold, as a result of which the boy fell into a coma ^[28]. And there are many such cases in Russia, as well as in Europe, every year, and therefore the introduction of the practice of using baby boxes is predetermined by the need to exclude (reduce) the number of cases in which unwanted, unnecessary children after birth are simply subjected to torture and abuse by their own parents.

Summarizing, we formulate the following conclusions:

The introduction of the practice of using baby boxes in Russia (locally, in 15 cities) and in a number of foreign countries (in particular, in Austria, Belgium, Germany, Italy, the USA, Switzerland, the Czech Republic, Japan and Poland) is socially conditioned and predetermined by a set of reasons outlined below:

- the need to fulfill the international legal obligations assumed by the States of the world that are members (participants) of a number of agreements, in particular, the Universal Declaration of Human Rights of 1948, the Declaration on the Protection of the Rights of the Child of 1959, the Convention on the Rights of the Child of 1989, to protect the right of the child to life and ensure conditions for maximum survival of children;

- the need to reduce the number of murders by mothers of their newborn children, leaving them in danger, due to the occurrence of reactive postpartum depression in mothers or due to other difficult life circumstances that prevent them from exercising their parental rights and independently raising and maintaining children (so, statistics from previous years (until the introduction of the practice of using baby-boxes), as well as the previous year, indicate a significant number of cases of murders of newborn children by their mothers, both in Russia and in a number of foreign countries (at the same time, after the introduction of the practice of using baby boxes in Russia, the number of such murders of newborn children decreased almost fivefold: from 108 in 2011 to 27 in 2022);

- the need to reduce the number of cases of abuse of unwanted children by their parents, as well as their being in a dangerous position in difficult life situations (for example, statistical data indicate a significant number of cases of torture of infants and young children, both in Russia and in a number of foreign countries (according to the Committee's reporting indicators The UN on the Rights of the Child – every second child in the world is subjected to domestic violence by their parents)).

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