Will China's two-child policy end forced abortions and other women's-rights violations?

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The Chinese government announced on October 29 that it is ending its “one-child policy” after more than three decades replacing it with the new “two-child policy.”[1] Now, married couples are allowed to have two children, instead of one. This follows the Chinese government’s “relaxation” of the policy in 2013, which allowed families to have two children if either the husband or wife was an only child.[2]

While some view this as progress and a step in the right direction for human rights in China, most human rights groups believe the new policy is still a violation of international human rights laws and standards pertaining to reproductive health rights and the right to found a family.[3] News organizations and human rights groups frequently reported human rights abuses occurring under China’s one-child policy, such as forced abortions, forced sterilizations, insertions of IUDs, and gynecological exams are also common.[4] It is reportedly common for “overzealous” local family planning officials to force women to have abortions, often by drug injections, sometimes even in a late stage of pregnancy, even at late stages in their pregnancies, and often at the risk of these women’s health.[5] The policy also led to infanticide and the sale of children—mostly among baby girls, due to a strong preference for boys.[6] Other punishments under the one-child policy, which dates to 1979, have included hefty fines, property seizures, and loss of jobs for couples with more than one child.[7] These punishments result in trauma and negatively impact citizens’ mental and physical health.[8] While China’s central government does not formally condone all these punishments, it has done little to prevent or investigate them; moreover, it has pressured local authorities to stay within population limits by threatening their jobs, and it has frequently cracked down to enforce the policy.[9]

Furthermore, the policy created more problems for China, including a nationally skewed male-to-female ratio and an aging workforce. [10] Another consequence is an unknown but substantial number of undocumented citizens who are denied access to public education or health services because of their status as “illegal children.”[11]

According to Human Rights Watch, the policy change does not prevent these abuses, nor does it give women their reproductive rights back.[12] William Nee, China Researcher at Amnesty International, also called the policy change inadequate: "Couples that have two children could still be subjected to coercive and intrusive forms of contraception, and even forced abortions – which amount to torture. . . . The state has no business regulating how many children people have. If China is serious about respecting human rights, the government should immediately end such invasive and punitive controls over people’s decisions to plan families and have children."[13]

The U.S. also called the change a “positive step,” but White House spokesman Josh Earnest reiterated the U.S. government’s commitment to ending coercive birth policies, stating that‘“[w]e also look forward to a day when birth limits are abandoned altogether.”[14]

International obligations

China is a party to several international treaties and conferences that its policy violates. Article 23 of the International Covenant on Civil and Political Rights (“ICCPR”) and the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) recognize the right “to marry and to found a family,”[15] and the right “to decide freely and responsibly on the number and spacing of ... children.”[16] These provisions bar governments from dictating when and how many children individuals or married couples have, yet China does so often forcefully and brutally.[17] To be sure, many Chinese couples want only one child or none at all, particularly in urban areas where more women are focused on careers.[18] Yet many couples who want more children have been forced or coerced to abort or to be sterilized.[19]

Additionally, Article 12.1 of the International Covenant on Economic, Social, and Cultural Rights (“ICESC”) recognizes the right “of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[20] According to the Committee on Economic, Social, and Cultural Rights (“CESCR”), the right to health “. . . include[s] the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.”[21]

It seems quite clear that forced abortions, sterilizations, and the mandatory use of certain birth control methods are serious human rights violations. The right to health is meaningless if individuals cannot make their own healthcare decisions. All healthcare decisions are important and personal, but decisions pertaining to reproductive health or family planning are particularly personal decisions. Even choosing a method of birth control is not as simple a task as it sounds, especially when certain methods can affect women differently. Women and couples in China who want to have children are still subject to rules about when they may have children, which is a violation of these treaties. The birth application process is reportedly being “simplified” by local officials, but couples must still apply for a certificate before they can have children.[22] Article 16(e) of CEDAW recognizes the right to decide (1) when to have children, and (2) how many children.[23] Yet married couples in China can only have two children, and the government decides when they can have them, depriving these couples of their human rights.

No consequences

While China has faced widespread condemnation from advocacy organizations and legal scholars,[24]it has faced no official consequences for these clear violations.[25] This is largely because the applicable treaties lack effective enforcement provisions.[26] While China is legally obligated to adhere to these treaties, UN mechanisms for overseeing state compliance cannot force China to implement the treaties’ principles.[27] In the absence of effective international enforcement, Congress and Republican U.S. presidential administrations have tried to pressure China by limiting the budgets of foreign aid agencies (PDF) that operate in China.[28]

Most human-rights treaties require state parties to “regularly submit reports regarding the measures they have taken to increase their protection of human rights, the practical problems with enforcing the measures, and the progress and achievements they have made.”[29] This system is flawed, perhaps understandably, because the reports submitted are cursory and often inaccurate.[30] Furthermore, the monitoring bodies face lack sufficient financial support and staff.[31] Unsurprisingly, China’s reports fail to address instances of coercive measures like forced abortion and sterilization, and focus on “the positive measures the government has adopted and the achievements they have made.”[32] One observer in the United States asserts that “these reports have no practical use” and notes the lack of “any tangible punishment of effect” if state representatives are questioned about human rights abuses during a hearing.[33] Additionally, Chinese government officials and legal scholars have downplayed the country’s various abuses by insisting that international human-rights law is aspirational, and always subject to national social and economic conditions.[34] Without China’s cooperation, the international community appears powerless to help find better way to deal with population issues. [35]

While the policy change is welcome, it does not end the suffering of the families who faced forced abortions, sterilizations, and heavy fines for daring to have more than one child.[36] The policy change is unlikely to help China’s demographics problems[37] and should be abolished entirely. Whether China’s policy allows for one or two children, this sort of policy is likely to result in human rights abuses such as forced abortions, sterilizations, etc. because local authorities will always be under pressure from the central government to meet targets. [38] Couples who want more than two children should be able to choose how many to have without facing repercussions.

[1] Communiqué, Communist Party Central Committee, Fifth Plenary Session of the Eighteenth Central Committee (Oct. 29, 2015), http://news.xinhuanet.com/politics/2015-10/29/c_1116983078.htm; see also Xinhua, China to allow two children for all couples (Oct. 29, 2015), http://news.xinhuanet.com/english/2015-10/29/c_134764064.htm (providing party’s summary of policy change via semi-official party mouthpiece); Edward Wong, One-Child Rule Is Gone in China, but Trauma Lingers for Many, N.Y. Times (Oct. 30, 2015), http://www.nytimes.com/2015/10/31/world/asia/one-child-rule-china.html.

[2] Elisabeth Rosenthal, Bias for Boys Leads to Sale of Baby Girls in China, N.Y. Times (July 20, 2013), http://www.nytimes.com/2003/07/20/world/bias-for-boys-leads-to-sale-of-baby-girls-in-china.html.

[3] See Maya Wang, Dispatches: Ending the One-Child Policy Does Not Equal Reproductive Freedom in China, Human Rights Watch (Oct. 29, 2015), https://www.hrw.org/news/2015/10/29/dispatches-ending-one-child-policy-does-not-equal-reproductive-freedom-china.

[4] Id; Barbara Demick, China One-Child Policy Leads to Forced Abortions, Mothers’ Deaths, L.A. Times (June 15, 2012), http://articles.latimes.com/2012/jun/15/world/la-fg-china-abortions-20120616.

[5] Demick, supra note 4.

[6] Rosenthal, supra note 2.

[7] Wang, supra note 3; Alexa Olesen, China One-Child Policy: Government Think Tank Urges Country’s Leaders To Start Phasing Out Policy Immediately, Huffington Post (Oct. 31, 2012), http://www.huffingtonpost.com/2012/10/31/china-one-child-policy-think-tank-phase-out_n_2050149.html.

[8] Wang, supra note 3.

[9] Wong, supra note 1.

[10] Olesen, supra note 7.

[11] Isabel Hilton, The One-Child Policy Changed China Forever with its Cruelty, Guardian (Oct. 30, 2015), http://www.theguardian.com/commentisfree/2015/oct/30/one-child-policy-china-cruelty-reproductive-rights.

[12] Wang, supra note 3.

[13] China: Reform of One-Child Policy Not Enough, Amnesty Int’l (Oct. 29, 2015), https://www.amnesty.org/en/latest/news/2015/10/china-one-child-reform.

[14] China Decides to Abolish 1-Child Policy, Chicago Tribune (Oct. 29, 2015), http://www.chicagotribune.com/news/nationworld/ct-china-one-child-policy-20151029-story.html [http://perma.cc/D7L8-5K4Q].

[15] International Covenant on Civil and Political Rights, art. 23, available at  http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[16] Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, art. 16(e), available at  http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16 [hereinafter CEDAW]; see also UN Population Fund, Programme of Action Adopted at the International Conference on Population and Development § 7.3 (Sept. 13, 1994), available at  http://www.unfpa.org/sites/default/files/pub-pdf/programme_of_action_Web%20ENGLISH.pdf (PDF).

[17] Wang, supra note 3.

[18] Dai Qing, Relaxing China’s One-Child Policy, N.Y. Times (June 12, 2013), http://www.nytimes.com/2015/06/13/opinion/relaxing-chinas-one-child-policy.html.

[19] Id.

[20] International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 999 U.N.T.S. 3, art. 12, available at  http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx [hereinafter ICESCR].

[21] General Comment No. 14 (2000), http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En.

[22] Laurie Burkitt, China Abandons One-Child Policy, Wall St. J. (Oct. 30, 2015), http://www.wsj.com/articles/china-abandons-one-child-policy-1446116462.

[23] CEDAW, supra note 16, at art. 16(e).

[24] See Ying Chen, China's One-Child Policy & Its Violations of Women's & Children's Rights, 22 N.Y. Int'l L. Rev. 1, 32-36 (2009).

[25] See id.

[26] See id.

[27] Id. at 32–33.

[28] Kemp-Kasten Amendment Legislative History, U.S. Agency for Int’l Dev. (undated), available at http://pdf.usaid.gov/pdf_docs/Pcaab709.pdf (PDF); see also Sneha Barot & Susan A. Cohen, U.S. Overseas Family Planning Program, Perennial Victim Of Abortion Politics, Is Once Again Under Siege, Guttmacher Pol’y Rev. (Spring 2015), http://www.guttmacher.org/pubs/gpr/18/2/gpr1802715.html [http://perma.cc/8AKV-K883]; Pub. L. 98-473 (1984) (appropriations bill for fiscal 1985).

[29] Chen, supra note 24, at 32.

[30] Id. at 33–34.

[31] Id. at 34.

[32] Id.

[33] Id. at 35.

[34] Lisa B. Gregory, Examining the Econ. Component of China's One-Child Family Policy Under Int'l Law: Your Money or Your Life, 6 J. Chinese L. 45, 62 (1992).

[35] Chen, supra note 24, at 36.

[36] Wang, supra note 3.

[37] Chris Buckley, China Ends One-Child Policy, Allowing Families Two Children, N.Y. Times (Oct. 29, 2015), http://www.nytimes.com/2015/10/30/world/asia/china-end-one-child-policy.html [https://perma.cc/8L3K-PTFQ].

[38] Max Fisher, Why China’s One-Child Policy Still Leads to Forced Abortions, and Always Will, Wash. Post (Nov. 15, 2013), https://www.washingtonpost.com/news/worldviews/wp/2013/11/15/why-chinas-one-child-policy-still-leads-to-forced-abortions-and-always-will.

Posted by Madison L. Beveridge on Wed. November 11, 2015 8:12 PM
Categories: Children's rights, China, Human trafficking, International Human Rights, Population control/management, Reports (longer, analytical blog posts), Women's rights

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