CHINA’S ONE CHILD POLICY: Reproductive Restriction vs. Reproductive Choice China’s “one-child” policy has been condemned as a violation of human rights. But is there a human right to have as many children as one chooses? Despina Iorga 14 November 2014 Human Rights and Governance Fig.1- Mothers with only child in China; (AFP/Getty Images, 2013)
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Name of student: Despina Iorga Student number: 14005143 Module number: P30314 Module name: Human Rights and Governance Module leader: Richard Carver Date of submission: 14 November 2014
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Contents
Introduction Page 3 One-child policy development process and state monopoly over family planning Pages 4-5 Right to reproductive choice through reproductive health and family planning as human rights Pages 6-9 Initial recognition CEDAW enhanced definition Further clarification from Mexico and consolidation from Cairo and Beijing Recent developments China’s One- child policy as an act of callous reproductive choice rights violations Pages 10-11 Conclusion Page 12 Figure List Page 13 Bibliography Pages 13-15 Fig.2- Since 2013, if one parent is an only-child, couple can apply for permission to have a second child; (Madison Park, 2013)
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Introduction
“The ability to regulate the timing and number of births is one central means of freeing women to exercise the full range of human rights to which they are entitled.” 1 It has been over three decades since China adopted its One-child policy, which functions directly against the right to reproductive choice, in an effort to control population growth. The case became of international concern in 2012 when, following the forced abortion 7-months old pregnant Chinese woman, prominent scholars called for relaxing or even suspending the policy. The essay aims to answer the question of whether the ability to decide freely on the number and spacing of one’s children is considered a fundamental human right and in which way the Chinese policy violates this principle. The means through which the issue is tackled are: a chronological depiction of UN conferences and conventions, where the right to reproductive choice has been debated, and through reports on China following these meetings to which the country has committed by being a State Party member. The right to reproductive choice is understood as a principle of reproductive health being incorporated in the fundamental right of any individual to health. The structure of the paper is segmented in 3 parts: the first relates the evolution of the structure of policy, second part analyses the discourse on recognition of reproductive choice as a human right and the final chapter depicts ways in which the policy violates the right to reproductive health and choice. Among the many resources used, including newspaper and journa articles, books and reports, the most relevant documents were the periodic reports of the Congressional-Executive Commission on China and of the Committee on the Elimination of all Forms of Discrimination against Women, and Maxwell and Mcfarlane book “China’s changed road to development”. Additionally, the journal article, “Human Rights and Reproductive Choice. Studies in Family Planning” by Freeman and Isaacs, provided useful understanding in the way the right to reproductive choice has been perceived since the 60’s.
1
Simmons, B. (2009). Mobilizing for Human Rights: international law in domestic politics. Cambridge: Cambridge University Press, pp.223.
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One-child policy development process and state monopoly over family planning
By the time the One-child Policy was officially adopted, the Chinese government had already been promoting late marriages, a four-year interval between births and fewer children per family for two decades 2. The date most often cited as the policy’s “official” start date is the 25th of September 1980, when the Central Committee of the Chinese Communist Party issued a public letter to the party membership, which urged all to comply with the new policy 3. The policy was mainly justified through rapid population grown and the implications this would have on the future of China, such as looming unemployment, unaffordable high investment costs, and impediments in turning China into a powerful and modern socialist society 4. Adopting the One-child policy marked the saltation of the degree of government interventions in family affaires, family plans no longer being subject to negotiations, but rather a matter of State control. In their book, “China's changed road to development”, Maxwell, N. and McFarlane, B. express their belief that “It is no exaggeration to suggest that the population planning policies of the Chinese leadership may represent an almost unique attempt by the State to acquire an exclusive measure of control over reproduction, family planning and family size”. 5 The policy imposed the one child per couple rule with very few exceptions, used incentives and sanctions as method of enforcement and was carried out unevenly. 6 After the 1994 Programme of Action of the Cairo International Conference and the 1995 Fourth World Conference on Women, China adopted in 2001 the Population and Family Planning Law. The government was under pressure by the UN to consider women’s reproductive health, social position and education, because of the policy’s long term effects, such as infanticide of baby girls, infertility due to multiple forced abortions and abuse of wives who bare daughters. 7 The new law maintained position of advocating late marriage and one child per couple (Art.18), but banned discrimination and maltreatment of infertile women and of women who give birth to baby girls (Art.22) and strictly prohibited using any means of identifying fetal gender, abandonment of baby girls and gender-preferential abortions. (Art.35) 8
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Maxwell, N. and McFarlane, B. (1984). China's changed road to development. Oxford: Pergamon Press, pp.125. Pletcher, K. (2014). one-child policy (Chinese government program). [online] Encyclopedia Britannica. Available at: http://www.britannica.com/EBchecked/topic/1710568/one-child-policy [Accessed 7 Nov. 2014]. 4 Maxwell, N. and McFarlane, B. (1984). China's changed road to development. Oxford: Pergamon Press, pp.125. 5 Maxwell, N. and McFarlane, B. (1984). China's changed road to development. Oxford: Pergamon Press, pp.129. 6 Pletcher, K. (2014). one-child policy (Chinese government program). [online] Encyclopedia Britannica. Available at: http://www.britannica.com/EBchecked/topic/1710568/one-child-policy [Accessed 7 Nov. 2014]. 7 Hershatter, G. (2007). Women in China's long twentieth century. Berkeley: Global, Area, and International Archive, pp.33-34. 8 Population and Family Planning Law of the People's Republic of China. (2002). 1st ed. [ebook] China Population Publishing House. Available at: http://www.hsph.harvard.edu/population/policies/china.pop.pdf [Accessed 12 Nov. 2014]. 3
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Other relevant repercussions of the policy are the overgrowth of elderly population and the shortage of workforce. In an effort to combat these issues, China permitted couples with both parents without siblings to fill in application for a second child and, in 2013 it eased the restrictions even further to only one parent being an onlychild. 9 Beyond these measures, China shows no intention to suspend or further relax the One-child policy in the near future. Nonetheless, since adopting the policy, the country has been State Party to various UN treaties on women rights, population and development, and economic, social and cultural rights, all of which advocate the international recognition of the right to reproductive health and choice, utterly violated by the Chinese policy. Gail Hershatter, in her book “Women in China’s long twentieth century”, asserts that “how many children a woman should bear and the disposition of an individual pregnancy have not been understood in Chinese discussions as a woman’s individual reproductive choice (…), but, rather, as a matter that affects and is legitimately affected by the family and the state.” 10
Fig.3- One of the effects of the One-child policy was the reversed ratio of aging population; the elderly fear there will be no one to take care of them anymore; (Elizabeth C. Economy, 2010)
9
Liu, K. (2014). No Timetable for Fully Relaxing One-child Policy - All China Women's Federation. [online] Womenofchina.cn. Available at: http://www.womenofchina.cn/womenofchina/html1/news/china/1411/742-1.htm [Accessed 10 Nov. 2014]. 10 Hershatter, G. (2007). Women in China's long twentieth century. Berkeley: Global, Area, and International Archive, pp.33.
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Right to reproductive choice through reproductive health and family planning as fundamental human rights
Initial recognition Reproductive health strategies have been in debate since the middle of the past century. They face the issues of the tension between demographic priorities and reproductive choice and the clash between international standards and local traditions, and were built around a revolutionary vision: “women as full, thinking, feeling personalities, shaped by the particular social, economic and cultural conditions in which each of them lives, are central to their own reproduction.” 11 The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, failed to make any remark on reproductive right but, 20 years later, the International Conference at Teheran 1968 would provide the first context to raise the issue of the right to reproductive choice at international level: “The protection of the family and the child remain the concern of the international community. Parents have a basic human right to determine freely and responsibly the number and spacing of their children” 12(Art.16). The 1974 World Population Conference in Bucharest reaffirmed the right to reproductive decision making. The element of novelty introduced at this conference was the inclusion of the “individual” alongside the “couple” as beneficiaries of the right to reproductive choice: “All couples and individuals have the basic right to decide freely and responsibly the number and spacing of their children and to have the information, education and means to do so.” 13 CEDAW enhanced definition The right of everyone to enjoy the highest reachable standard of physical and mental health is an inherent human right, recognized in major human rights instruments, including the Universal Declaration of Human Rights. The right to reproductive health is an integral part of the fundamental heath right, which has different implications for women and depends on the enjoyment of other rights, such as the rights to education and information. 14 Reproductive health is based on the principle that individuals are able to exercise control over their sexual and reproductive lives, which encompasses free and responsible decision-making regarding marriage, family and children with access to information and means needed to exercise voluntary choice. 15 11
Freedman, L. and Isaacs, S. (1993). Human Rights and Reproductive Choice. Studies in Family Planning, 24(1), pp.18. Web.archive.org, (2013). Proclamation of Teheran. [online] Available at: http://web.archive.org/web/20071017025912/http://www.unhchr.ch/html/menu3/b/b_tehern.htm [Accessed 11 Nov. 2014]. 13 Freedman, L. and Isaacs, S. (1993). Human Rights and Reproductive Choice. Studies in Family Planning, 24(1), pp.22. 14 Unfpa.org, (2014). Improving Reproductive Health Care: Advancing Human Rights: UNFPA. [online] Available at: http://www.unfpa.org/rights/rh.htm [Accessed 11 Nov. 2014]. 15 Unfpa.org, (2014). Reproductive Rights: Advancing Human Rights: UNFPA. [online] Available at: http://www.unfpa.org/rights/rights.htm [Accessed 11 Nov. 2014]. 12
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Fig.4- Family Planning Helps Everyone, a poster from the 1994 International Conference on Population and Development in Cairo, Egypt; (Goldstein S. , 2012)
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In 1979 the Committee on the Elimination of all Forms of Discrimination against Women (CEDAW) was adopted by the UN General Assembly. It provided the legal basis for a woman’s right to access the means to control her own reproduction, aimed at reducing maternal mortality and morbidity and enhancement of dignity of women and their reproductive self-determination and effected above and beyond general goals of governments regarding population control. 16 Compared to previous treaties dealing with the issue of reproductive health and choice, CEDAW emphasized on gender equality and encouraged governments to assure elimination of discrimination: “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning” 17. Further clarification from Mexico and consolidation from Cairo and Beijing The 1984 International Population Conference in Mexico City the Bucharest Conference Plan of Action and the CEDAW principles regarding equality in family planning rights, by expanding and fully clarifying for the first time the issue of “responsibility”: “Any recognition of rights also implies responsibilities: in this case it implies that couples and individuals should exercise this right [reproductive choice] taking into consideration their own situation, as well as the implications of their decisions for the balanced development of their children and of the community and society in which they live” 18. In 1994, 179 governments came together and adopted the Programme of Action of the International Conference on Population and Development (ICPD), in Cairo, that clearly defined family planning as a fundamental human right, including freedom of choice of number and spacing of children, and tackled the disagreements regarding human rights and population planning systems. “The ICPD marked a great paradigm shift in the field of population and development, replacing a demographically driven approach to family planning with one that is based on human rights and the needs, aspirations and circumstances of each woman.” 19 The Fourth World Conference on Women followed, one year later in 1995, in Beijing. The Declaration affirms the “basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children” 20(Art.95) and expands on the fact that “the human rights of women include their right to have control 16
Simmons, B. (2009). Mobilizing for Human Rights: international law in domestic politics. Cambridge: Cambridge University Press, pp.224-227. 17 Convention on the Elimination of All Forms of Discrimination against Women- Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 entry into force 3 September 1981, in accordance with article 27(1). (n.d.). 1st ed. [ebook] pp.6. Available at: http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf [Accessed 10 Nov. 2014]. 18 Freedman, L. and Isaacs, S. (1993). Human Rights and Reproductive Choice. Studies in Family Planning, 24(1), pp.2223. 19 BY CHOICE, NOT BY CHANCE- FAMILY PLANNING, HUMAN RIGHTS AND DEVELOPMENT. (2012). 1st ed. [ebook] New York: United Nations Population Fund, pp.ii. Available at: http://www.unfpa.org/webdav/site/global/shared/swp/2012/EN_SWOP2012_Report.pdf [Accessed 11 Nov. 2014]. 20 Beijing Declaration and Platform for Action. (1995). 4th ed. [ebook] Beijing: Commission on the Status of Women CSW, pp.35-36. Available at: http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf [Accessed 12 Nov. 2014].
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over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence” 21(Art.96). Recent developments Most notable recent procedures on the matter of the reproductive health and choice rights were the 1996 meeting on “Human rights approaches to women’s health, with a focus on sexual and reproductive health and rights”, organized by the UN Population Fund (UNFPA), to interpret and contribute to reproductive health rights and ins follow-up in Geneva 2001, to assess the progress of integrating these rights. 22 Additionally, the 2005 World Summit focused on reaching universal access to reproductive health, highlighted these rights as essential to the enjoyment of other fundamental rights and suggested further development of educational programs. 23 In spite of constant efforts from various UN parties to change the formal law regarding reproductive health rights, with emphasis on reproductive choice, and to raise awareness of its importance and much needed international status, the right to reproductive autonomy is not yet seen as a genuine human right, with concise standards of enforcement and is not properly incorporated into governmental structures. Fig.5- United Nations Fourth World Conference on Women held in Beijing, China on 4-15 September 1995; (Grant M. , 2013)
21
Beijing Declaration and Platform for Action. (1995). 4th ed. [ebook] Beijing: Commission on the Status of Women CSW, pp.35-36. Available at: http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf [Accessed 12 Nov. 2014]. 22 UNFPA, (n.d.). Application of Human Rights to Reproductive and Sexual Health. New York: UNFPA, pp.1-2. 23 Unfpa.org, (2014). Reproductive Rights: Advancing Human Rights: UNFPA. [online] Available at: http://www.unfpa.org/rights/rights.htm [Accessed 11 Nov. 2014].
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China’s One- child policy as an act of callous reproductive choice rights violations
In 2012 a scandal arose in China, after a 23-year-old woman was forced to abort a 7month-olf fetus, after her and her husband failed to raise the money to pay the fee for a second child. Internal, as well as international, reaction soon followed, urging government to ease the policy or to completely dismantle it. 24 A month later, a group of outstanding Chinese scholars issued an open letter calling for reassessment of the One-child policy, arguing it’s incompatible with increasing respect for human rights and need for development: “The birth-approval system built on the idea of controlling population size as emphasized in the current 'Population and Family Planning Law' does not accord with provisions on the protection of human rights contained in the nation's constitution”. 25 Following the ease on restrictions from 2013, which allowed couples to apply for a second child if one of them was an only-child, dissatisfactions regarding the policy continued: “The one-child policy has appeared increasingly out of place in a society where social mobility and individual freedoms have greatly expanded in the past decade” 26, but further measures towards a human rightsbased approach have not been taken by the state. The policy violates the Universal Declaration of Human Rights, CEDAW, the 1994 Cairo Programme of Action of International Conference on Population and Development and the 1995 Beijing Declaration at the Fourth World Conference on Women, to all of which China is a State Party member and has committed to upholding their terms. 27 This includes incorporating principles of equality of men and women and of reproductive health and choice in their legal system and abolishing all discrimination laws against women. 28 As State Party to the above mentioned treaties, China also has the duty to submit periodical reports to CEDAW, Congressional-Executive Commission on China (CECC) and to the Commission on the Status of Women (CSW- every 5 years following the Beijing Declaration). The last CEDAW report from 2006 mainly expressed concerns regarding the unclear definition of discrimination against women in Chinese domestic legislation and lack of public information regarding reproductive health rights. 29 The 2014 CECC report acknowledges the fact that Chinese law prohibits official infringement on the human rights of citizens but fails to mention what 24
Allgirlsallowed.org, (2013). One-Child Policy Statistics | All Girls Allowed. [online] Available at: http://www.allgirlsallowed.org/one-child-policy-statistics [Accessed 7 Nov. 2014]. 25 Allgirlsallowed.org, (2013). One-Child Policy Statistics | All Girls Allowed. [online] Available at: http://www.allgirlsallowed.org/one-child-policy-statistics [Accessed 7 Nov. 2014]. 26 BURKITT, L. (2013). China Eases One-Child Policy. The Wall Street Journal. [online] Available at: http://online.wsj.com/articles/SB10001424052702303289904579199431427590394 [Accessed 7 Nov. 2014]. 27 Allgirlsallowed.org, (2013). One-Child Policy Statistics | All Girls Allowed. [online] Available at: http://www.allgirlsallowed.org/one-child-policy-statistics [Accessed 7 Nov. 2014]. 28 Un.org, (2014). Text of the Convention on the Elimination of All Forms of Discrimination against Women. [online] Available at: http://www.un.org/womenwatch/daw/cedaw/cedaw.htm [Accessed 11 Nov. 2014]. 29 UN- CEDAW, (2006). Concluding comments of the Committee on the Elimination of Discrimination against WomenChina. 36th session. pp.2-5.
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constitutes these rights and what are the penalties for offences and clearly calls for abolition of policy due to gross human rights violations. 30 Finally, regarding Asia report, at the 20-year meeting since the Cairo conference, CSW urged governments to review their abortion laws, more specifically “repeal laws that punish women and girls who have undergone illegal abortions.” 31 The words of Co-chairman Smith on the CECC 2014 report, best conclude the analysis, with a short depiction of the situation in China today: “It has been another horrific year for human rights in China, no one should still believe that President Xi Jinping will be a new type of Chinese leader, more open to reform and rights protections. This report, like last year’s, details the pervasiveness of China’s brutal population control policies and shows clearly that women continue to face surveillance, shame, and violence, including forced abortions and sterilizations this year”. 32
Fig.6- Propaganda for One-child policy; (Alamy , 2013)
30
Congressional- Executive Comission on China, (2014). Annual Report 2014. 113th report, 2nd session. Washington: U.S. Government Printing Office, pp.28-30. 31 Barot, S. (2014). Looking Back While Moving Forward: Marking 20 Years Since The International Conference on Population and Development. [online] Guttmacher.org. Available at: https://www.guttmacher.org/pubs/gpr/17/3/gpr170322.html [Accessed 12 Nov. 2014]. 32 Congressional-Executive Commission on China, (2014). Chairman Brown and Cochairman Smith Statement on 2014 Annual Report. [online] Available at: http://www.cecc.gov/media-center/press-releases/chairman-brown-andcochairman-smith-statement-on-2014-annual-report [Accessed 8 Nov. 2014].
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Conclusion
Substantial measures towards acknowledgement of importance of the right to reproductive choice, as it states that couples and individuals have the right to freely and responsibly chose the number, spacing and timing of their children, have been taken by UN parties through various conferences, convents and commissions over the past four decades. However, this right has not reached palpable international recognition and is still seen as an incorporated principle of the right to reproductive health and, implicitly, of the fundamental right to health of any individual. Further actions should be taken to promote reproductive choice as a genuine, basic human right, in an effort to put pressure on states which still practice population control, such as China. Through its One-child policy, adopted in 1980 with very few adjustments since, China violates The Universal Declaration of Human Rights, CEDAW, the International Conference on Population and Development in Cairo and the Beijing Declaration, through state control over number and spacing of children which led to violent women discrimination.
Fig.7- A policy change is needed in order to decrease human rights violations; (EPA , 2013)
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Figure List
Fig.1- AFP/Getty Images (2013) article-2523581-19CB7CF600000578-871_634x422. Available at: http://www.dailymail.co.uk/news/article-2523581/China-fines-families-2BILLION-breaking-strict-child-policy.html [Accessed 09th Nov. 2014] Fig.2- Madison Park (2013) 131117211250-pkg-mckenzie-china-only-children-00003923-story-top. Available at: http://edition.cnn.com/2013/12/28/world/asia/china-one-child-policy-official/ [Accessed 09th Nov. 2014] Fig.3- Elizabeth C. Economy (2010) 20100927_OneChildPolicy. Available at: http://blogs.cfr.org/asia/2010/09/27/counting-from-one-to-two-in-china/ [Accessed 09th Nov. 2014] Fig.4- Goldstein, S. (2012) Goldstein_7-31. Available at: https://www.k4health.org/blog/post/icpd-full-circle-after-20years [Accessed 09th Nov. 2014] Fig.5- Grant, M. (2013) 20130724-ECOSOCResolution-UNPhoto_66749-500x300. Available at: http://www.unwomen.org/en/news/stories/2013/7/ecosoc-launches-beijing-plus-20-review [Accessed 09th Nov. 2014] Fig.6- Alamy (2013) one-child-china_2511010b. Available at: http://www.telegraph.co.uk/women/womenslife/10531422/How-Chinas-one-child-policy-overhauled-the-status-and-prospects-of-girls-like-me.html [Accessed 09th Nov. 2014] Fig.7- EPA (2013) china_2268471b. Available at: http://www.telegraph.co.uk/news/worldnews/asia/china/9378679/Chinese-academics-urge-end-to-one-childpolicy.html [Accessed 09th Nov. 2014]
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