A Misplaced Bright-Line Rule: Coercive Population Control in China and Asylum for Unmarried Partners

• Author: Megan C. Dempsey
• Position: J. D. Candidate, The University of Iowa College of Law, 2007; B.M., Indiana University-Bloomington, 2004
• Pages: 215-243

J. D. Candidate, The University of Iowa College of Law, 2007; B.M., Indiana University-Bloomington, 2004. I would like to thank the following people: Professor Stephen H. Legomsky for his feedback on an early draft; all editors and student writers of the Iowa Law Review for their help in preparing this Note for publication; and my family and friends for their constant love and support.

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I Introduction

For nearly three decades, couples in China have endured strict government limitations on their fertility. Chinese population control has been enforced through uncompromising means, including forced abortion and sterilization.¹ The severity of these measures reflects the fear of burgeoning population growth and the ensuing economic debilitation that would result.² In response to coercive population control, Chinese couples have fled to the United States with the hope of permanently escaping reproductive persecution. In 1996, the United States Congress created special statutory asylum rights for victims of coercive population control.³ Those statutory rights have also been extended, through administrative decision, to spouses of the victims of forced abortion or sterilization.⁴ However, the law governing asylum for partners of victims of coercive population control is unsettled when a Chinese couple is not legally married.

Part II of this Note explains coercive population control and its development in China, basic United States asylum law, and the change in asylum law that occurred in response to China's coercive population control program.⁵ A discussion of the current case law on partners of victims of coercive population control and their rights to asylum follows in Part III.⁶ Part IV presents the argument that for the purposes of asylum law, within the narrow context of persecution based on coercive population control, there should not be a bright-line distinction between married and unmarried partners.⁷ The bright-line rule separating married and unmarried partners is, in this instance, defined by the persecuting state. China sets minimum-marriage-age requirements as a part of its population control policy. Therefore, the United States, in adopting this bright-line rule, has integrated into its asylum law the laws of the persecuting state that are directly related to the persecution at issue. This result should not withstand even the most deferential scrutiny.

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II Asylum Law in the United States and Coercive Population Control in China

This Part sets forth the evolution of United States asylum law as it relates to Chinese coercive population control. Important to this analysis is the development and use of coercive population control in China.

A Progression from Family Planning to Coercive Population Control in China

Family planning in China emerged in the early 1950s with scholars setting forth goals of protecting the health of women and children.⁸ Supported by the Chinese Communist Party, family planning was promulgated as a means to achieve general health and national prosperity.⁹ These principles coexisted with socialist engineering that attempted to distribute more evenly China's population over the country's full geographic area.¹⁰ Family-planning policy at this time, however, was not unanimous, with economists urging controlled population growth, and the Maoist leadership promoting unlimited growth as a goal of socialism.¹¹ By the 1970s, it was evident that a gradual shift had occurred from a paradigm of engaging in family planning to a paradigm of limiting population growth;¹² this shift indicated the increased role of state responsibility in the family-planning process.¹³

In 1979, Deng Xiaoping, the Communist Party leader, announced state sponsorship of a one-child policy.¹⁴ This mandate was a response to the ever-increasing population and the fear that "massive starvation" and "economic and social stagnation" would result.¹⁵ Family planning geared toward limiting population growth persisted throughout the 1980s.¹⁶

One aspect of state-sponsored family planning was the Marriage Law of 1980, which, among other things, set forth minimum-marriage-agePage 217 requirements.¹⁷ The marriage age for women was set at twenty, and marriage age for men was set at twenty-two.¹⁸ Though the Marriage Law provided minimum ages, other factors affected and continue to affect the ability of couples to marry at a certain age, such as local administrative marriage-age levels.¹⁹ Accordingly, at present, the actual minimum marriage ages may be higher in some areas.²⁰

Enforcement of family-planning procedures was also strengthened in the 1980s through joint directives of the Communist Party and the State Council.²¹ Directives of the Communist Party in China are "equivalent or superior to legislation and codified laws."²² This strengthened campaign continued into the 1990s through local administrative enforcement systems.²³ The creation of the Chinese Birth Planning Association and a central system to monitor women's reproductive histories aided in the policy of systematic enforcement.²⁴

Today, enforcement of family-planning procedures in China ranges from persuasion to coercion.²⁵ At one extreme, persuasion in China takesPage 218 shape as Communist "propaganda-and-education," a facet of which is "voluntarism."²⁶ "Voluntarism" describes the process by which people are encouraged to comply with rules-such as those mandating population control-even though the rules are, in fact, mandatory.²⁷ At the other extreme is physical coercion against people or their property, which occurred most noticeably in the 1980s and was even documented by Chinese population control program officials.²⁸ Though technically prohibited after 1984,²⁹ coercive measures are still implemented through property destruction, coerced abortions, and sterilizations.³⁰ Coercive measures have often occurred when local officials are under intense pressure to meet population control quotas.³¹

Between the two extremes of propaganda and physical coercion is a system of "incentives, disincentives, and education."³² This system provides encouragement to couples who agree to have only one child. Encouragement includes incentives that cover the cost of education and medical care for the child, allow the mother longer maternity leave, provide the family with larger living space, and advance cash subsidies in smallPage 219 amounts.³³ Disincentives may include "fines, demotions, and withholding of social services."³⁴ Finally, the Chinese government has sought to educate the public about the risks of uninhibited population growth.³⁵

The aggregate psychological effect of this system of propaganda, incentives, disincentives, "voluntarism," and physical coercion is a heavy burden that is borne by the victims of population control policies and their loved ones. In his biography of a Chinese woman affected by coercive population control, Steven Mosher records a woman's thoughts after a recent state-enforced abortion: "Who is the xiongshou, the villain, of this episode? Is it the doctor responsible for my daughter's death? Is the population control official the villain? Is the policy itself to blame? Am I the villain?"³⁶

The structure of family planning in China places the burden of state-enforced birth rules on young couples, and much of this burden is borne by women.³⁷ Women are responsible for using effective contraceptive methods and also responsible for the consequences of unintended pregnancies when contraception fails.³⁸ Pregnancies not conceived within the ambit of the planning policies are subject to "remedial procedures," including abortion.³⁹ Though the legal policy since 1984 has been not to force abortion,⁴⁰ but rather to use "persua[sion]"⁴¹ or a heightened form of persuasion called "mobiliz[ation],"⁴² forced abortions or sterilizations still occur on some level.⁴³

The birth-planning rules are organized to allow a married woman to have only one child.⁴⁴ After her first child is born, the woman must submit to insertion of an intra-uterine device, or IUD.⁴⁵ If the woman becomesPage 220 pregnant again, she is expected to abort the "'out-of-plan' pregnancy."⁴⁶ If an out-of-plan birth occurs, it will result in mandatory sterilization for one spouse,⁴⁷ usually the mother.⁴⁸ This system is further enforced by requiring couples to obtain certificates before having children.⁴⁹ If a woman becomes pregnant without such a certificate, an abortion is mandatory.⁵⁰ There is a fine line between abortions or sterilizations that are mandatory because they are demanded by law but socially enforced, and those that are demanded by law and physically enforced. This Note only concerns the latter. A basic...