Not in our country? A critique of the United States welfare system through the lens of China's one-child law.

• Author: Love, Christie N.

1. INTRODUCTION

   The United States has not shied away from speaking out about human right abuses that take place across the globe. (1) However, in assuming the role of human rights crusader globally, the United States has neglected human rights violations that take place in its own backyard. Women and the poor have a long history of having their rights violated in this country. This violation is starkest at the intersection of the two groups, which can be seen in the development of welfare law. Racial stereotypes, traditional notions about gender roles and the role of the family, and political aspirations have shaped the development of welfare law in the past and continue to have a strong influence in the current law. United States welfare policy arguably is not in alignment with current human rights instruments (2) or constitutional law regarding privacy. (3)

   The United States considers itself a human rights defender abroad, but the manner in which the United States has dealt with China in the context of human rights is enlightening. The United States has criticized China's one-child law for resulting in coerced abortions and forced sterilizations, and as a result of these findings the United States has pulled much-needed funding from the United Nations Family Population Fund (UNFPA), which supports the family planning endeavors of the Chinese government. (4) However, despite the disapproval that the United States has exhibited toward Chinese law, current American welfare law uses similar methods and has effects similar to those occurring in China. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (5) is credited with overhauling the welfare system, and, although it fell short of President Clinton's promise to end "welfare as we know it," it did radically change welfare as we knew it. (6)

   PRWORA replaced the welfare assistance program, Aid to Families and Dependent Children, with the Temporary Aid to Needy Families Program (TANF). (7) Women comprise ninety percent of the TANF adult caseload, (8) which means that women bear the brunt of having their family planning choices influenced and scrutinized by the new welfare laws. The United States has not taken the drastic measures sometimes used in China, such as forcibly requiring sterilization or abortion, (9) but the fact that human rights violations within United States borders are less conspicuous does not mean that they are less serious. The vigor with which the United States criticizes China's policy should not be any less vigorous when evaluating policies inside the United States. (10)

   This Article will argue that the structure and effects of United States welfare law and China's Family Planning Law are similar; that the United States needs to be as responsible as it demands China to be; and that the United States must remedy the injustices that are present in its own system. Part II of the Article will provide a summary of the historical development of welfare law in the United States and of family planning law in China, and offer a comparison of the two histories. Part III will examine specifically how the laws of the two countries are similar, looking in particular at three general areas: the methods used to implement and enforce policies, the groups harmed by the policies, and the effects of the policies. The final Part will conclude by suggesting that the welfare system needs to be re-evaluated to incorporate more fully the needs of women and that this incorporation must extend beyond their reproductive capabilities. The incorporation of women's rights would require the government to adopt a "rights-conscious" anti-natalist population policy which would allow for women's reproductive rights to be respected. (11)

2. TWO HISTORIES, A SINGULAR TALE

   1. History of the United States Welfare State

      Welfare in the United States grew out of the desperate circumstances that were produced by the Great Depression precipitated by the stock market crash of 1929. "Poverty, unemployment and the dire circumstances of the time" made it abundantly clear that government assistance was needed to help people get through these turbulent times. (12) Six years later, the Social Security Act of 1935 was enacted under President Roosevelt. (13) The Social Security Act initially established the Aid to Dependent Children (ADC) program, which provided cash assistance to families with children under sixteen years of age and focused on helping children whose parents were "deceased, disabled, or absent." (14) ADC excluded children whose parents were unemployed. Despite congressional hope that "Social Security would take the place of most of the welfare," (15) ADC continued to grow. By 1960, over 2 million children and 795,000 families were enrolled in the program. (16) As the program grew, the characteristics of the average beneficiary changed. In 1935, eight out of ten ADC recipients were widows. In 1960, the vast majority of women receiving welfare were those who were divorced or who had never married, and over half of the children who benefited were the result of illegitimate births. (17)

      The changing demographics helped to politicize the program, and they continue to do so today. (18) Representative Barry's remarks in 1960 capture what would be the basis for the new rhetoric of welfare: "I do not believe that the mere fact of having little money entitles everybody, regardless of circumstance, to be permanently maintained by the taxpayers at an average or comfortable standard of living." (19) This period marked the welfare system's first exploration of restrictions on reproductive freedom and attempts to make recipients adhere to traditional notions of what a family ought to be. Louisiana had a "suitable home" requirement that "denied aid to mothers who had given birth out of wedlock ... [and] some 23,000 children, most of them African-American[,] were removed from the program." (20) In 1961, ADC recipients in the Newburgh jurisdiction of New York had their aid curtailed if they had additional illegitimate children while receiving aid. (21)

      The changing demographics and growing rolls of the ADC led to the "key moment in creating the modern American welfare system," the passage of the Public Welfare Amendments of 1962. (22) These amendments revamped ADC and renamed it Aid to Families and Dependent Children (AFDC). (23) After the Public Welfare Amendments, nearly one million cases were added to AFDC, and the caseload rose to fourteen million by the mid1990s. (24) Eight years prior to the passing of PRWORA, the Family Support Act (FSA) of 1988 was signed into law by President Reagan. (25) Reagan wanted to revise the welfare program because he believed that it degraded the moral worth of work, encouraged family break-ups, and drove communities into dependency--the same themes that had prompted the development of AFDC over two decades earlier and continue to fuel the current debate. (26) Liberals and conservatives agreed that there was a need to end welfare dependence but disagreed over how to do it. It was during this period that welfare changed into "a contract, [and] not a check." (27) This contract was between the individual and the state welfare agency and provided that recipients "would promise to engage in the education or job training needed to obtain a job, and the state would give them the support and resources they needed to move into the workforce." (28) The FSA recognized the importance of education, training, and employment if welfare recipients were to attain long-term success. (29) However, the politicians involved failed to take into consideration the social context in which welfare recipients lived, (30) and these ideals could not be easily realized.

      Poverty could not be eradicated by one bill and neither could the systems and institutions that maintained it be destroyed by a single bill. This did not stop politicians from trying. In 1992, a familiar campaign promise was made to "fix" the welfare system, as President William Clinton promised to "end welfare as we know it." (31) On August 22, 1996, President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) into law. (32) Initial drafts of the bill included a lifetime limit on public assistance, allowing no one to draw benefits for more than five years of his or her entire life; restrictions on non-citizens' ability to receive aid; the exclusion of children born to unwed teenage mothers; and the federal government's transfer of power to the states in a block grant, called Temporary Assistance to Needy Families (TANF), (33) allowing the states the freedom to structure their own individualized welfare programs. (34) Many of these provisions were retained in the final version of the act, with the exception of the exclusion of children born to unwed teenage mothers. In the final draft, teenage mothers were allowed to receive benefits as long as they met certain living and educational requirements. (35) The eligibility exclusion limits, which would exclude children born to women already on AFDC, were a hotly debated topic and were taken in and out of drafts of the bill and, in the final product, made optional at the states' choice. (36)

      The debate about how this country will address poverty has not lessened, and in the last two years the reauthorization of the TANF block grants has been temporarily extended seven times (the current welfare law expired in 2002). (37) Recently, a short-term extension was passed to extend TANF through June 30, 2005. (38) Welfare regulations have proven true the old adage that the only constant is change. The changes that will come in the near future may reflect yet another chapter in an increasingly restrictive story of welfare that stresses work and so-called traditional family values. (39)

   2. History of the Family Planning Law in China

      The history of population control in China is one of fluctuation between...