China, Children and the Fight for Human Rights

By Judy Chen

The one-child policy has been a defining characteristic of China since its implementation in 1979. Although its recent modification permits families under certain qualifications to have two children instead of one, China’s population control policy is still quite controversial. Even after the policy shift, the Chinese government executes rigid regulations on private decisions such as family planning and women’s free exercise of their reproductive rights. The intransigent and impersonal enforcement of the one-child policy resulted in countless incidents of sex-selective and forced abortions, which has presented severe barriers for female empowerment and the ongoing effort against patriarchy in China. Nominally, the two-child policy has widened the options of family size for this generation and hopefully, the ones to come. 

However, small family has become an integral and encouraged part of Chinese urban culture; A sudden increase in average family size is predicted to be unlikely, especially with the rising cost of subsistence in cities. Meanwhile, individuals in rural areas have become  accustomed to bribing town, county and village officials to avoid punishment for having too many children. To a certain extent, expecting a positive shift in the corrupt rural culture due to the two-child policy is unrealistic. Whether or not the modified policy will mitigate harmful practices such as sex-selective and forced abortions, involuntary sterilization and deprivation of girls’ education is up in the air. However, with all the progress this policy changes represents,Chinese women still have no autonomy over their private, reproductive rights. By weighing the impact of China's population control policies, we can address the long-held question: How can China work towards both freedom and sustainable population growth?

One-Child

The inflexible implementation of the One-Child Policy has given rise to cultural practices that undermine women’s bodily autonomy, including sex-selective and late-term forced abortions.

In 2005, more than 1.1 million excess births of boys occurred partly as a result of sex-selective abortions. Sex-selective abortions occurred more frequently in rural than urban areas as a result of deeply embedded patriarchal values. Medical technology, although limited, is still accessible in rural areas, and allows families the option to know the sex of the fetus before birth. While it is true that the one-child restriction does not impact rural families as severely because of frequent briberies of administrative officials and significantly less rigid enforcement of the law, it has deepened general preference of sons over daughters, especially for among families who could not afford to bribe. Historically, men have been the head of the household in China. This traditional, commonly-held value is hardly mitigated in most rural areas in China, due to lack of exposure to Western liberal ideals that promotes equality, justice and individual rights. Sons are seen as more valuable assets because of their perceived future ability to contribute physical strength to farming, earn majority of household income and more importantly, to carry the family name and legacy to the next generation. Daughters are more commonly perceived as components of the family that will eventually be “married off” to another one. Rooted in China’s historical culture, this mindset resulted in higher youth literacy rate among males.Families do not see educating daughters as a necessity since they are mostly expected to stay at home in their marriages.

Although the government outlawed prenatal sex determination for non-health-related reasons in 1986, the trend of gendercide has not significantly dwindled in rural areas because son preference, the root of the problem, persisted as a norm. Unfortunately, government regulations did not have a substantial effect on stopping gendercide for two reasons: back-door services that accepted bribery, and superstitious means of prenatal sex determination. In urban cities, sex-selective abortions occurred less. Although residents in developed cities were more likely to be influenced by Western ideals, they were subject to much stricter law enforcement compared to rural families. The one-child limitation drives a sizable number of couples to the traditional norm of son preference. Back-door services and non-medical approaches, to a lesser degree than in rural areas, nonetheless enable couples to engage in gendercide even after government regulations were uptputplace. Even with the exponentially growing population in the status quo, the United Nations Population Fund, in conjunction with UNICEF, U.N. Women and WHO, openly denounce the practice of sex-selective abortion and gendercide as it obstructs the progress of global female empowerment and compromises women’s reproductive health.

Under the one-child policy, more blatant human rights violations presented themselves in the form of late-term abortions and involuntary sterilizations, both enforced by the government. In most cases, women and families expecting their second child had no other option but to abort if they hoped to keep their jobs. The option of paying a fine that takes up a considerable percentage of household income was not realistic for middle and working class families. Since the fine grows with income level, the stakes of violating the policy are high for wealthier citizens as well. The Chinese government put severe pressure on women and family to follow a law that impaired their autonomy.

At a more drastic level, there have been incidents where local officials forcefully carried out the actual procedures to meet the birth quota of a unit of community (e.g. village, town, city). In October 2013, Zhou Guoqiang and his wife Liu Xinwen’s home was broken into, at 4am, by 20 officials of Shandong Province Family Planning Commission, some of whom took Liu to the hospital where she was injected with abortion-inducing drugs involuntarily, while her husband was held down by the rest of the officials at home. In July 2012, Zhong Xuexiang, a 39-year-old woman, suffered from severe bleeding as a result of involuntary sterilization forced by local authorities, who reneged on their promise to cover the medical cost after the procedure. A report by U.N. human rights council called upon China to prohibit forced abortion and sterilization and investigate occurrences of such horrendous events. The Chinese government insisted that practices were already outlawed and refused to further investigate the aforementioned cases that were broadcasted internationally. The stories of Liu and Zhong are not anomalies. The one-child policy instigated irreversible oppression on women’s reproductive autonomy, which counters U.N.’s recognition of “the opportunities to decide the number and spacing of children” as a fundamental human right to all parents.

Two-Child

The official riddance of the one-child policy presents a significantly wider option for most families. However, real-life barriers that prevent families from having two children will not automatically disappear due to a change in policy. It is predicted that the new policy would not induce expected level of change in the status quo due to economic barriers and the prevalent norm of small family in cities, and existent lack of law enforcement in rural areas. The cost of living in cities, especially metropolises in China, is disproportionately high compared to the income of middle and working classes. “According to the Chinese Academy of Social Science, it costs 490,000 yuan ($77,165) to raise a child from birth to 16 years old in an average city in China. Meanwhile, a Credit Suisse survey suggests the average cost of raising a child to 18 is 23,000 yuan ($3,622) a year, eating away 43 percent of the average family's annual income.” 

In rural areas, the practice of bribery and use of private connections for illegal accomplishments are too widespread for the new policy to cause a substantial increase in population. The liberation of China’s population control policy did not occur simultaneously with the growth in the comprehensiveness of social security, especially regarding child welfare and paid maternity leave. Women who hold lower-income, less secure jobs may be pressured to abort their second child if their employers or the government could not guarantee their and offer them the financial support they need at the same time. "The financial pressure is my main concern," said IT company manager Gong Yanming, who expects his first child to arrive in a couple of weeks, "If we decide to have another baby, then my wife needs to quit her job and stay home with kids all the time. But we will not be able to afford a life with two children in that way. It's so expensive to raise a child in China, I would rather focus all my resources on one child." Speculation that the two-child policy will fail is high due to structural, economic and cultural reasons, which presents the possibility of China reverting its policy back to the one-child limitation. In that case, it would only be a matter of time before the resurgence of human rights violations induced by the one-child policy.

Even if the two-child policy successfully increases average family size, China still has a long way to go before they achieve the complete elimination of aforementioned human rights abuses such as sex-selective abortions. The root cause of this practice is the culturally entrenched value of gender preference. However, the one-child limitation irreversibly exacerbated the backwards cultural trend. The only effective way to fight son preference in China is to significantly reduce governmental pressure so that families have full control over their private reproductive decisions. This somewhat radical scenario would halt or significantly slow down the growth of gendercide. Parents who genuinely oppose gendercide will be much less compelled by cultural factors to decide on their future child’s gender through means that conflict with international norms of gender equality.

Finally, it is worth noting that easing the policy from one child to two children does not obliterate the fact PRC government still dictates families’ private, reproductive decisions. The enforcement of population control policies still compromise women’s reproductive autonomy, a fundamental human right recognized by international institutions such as the United Nations, U.N. Women and WHO, and the privacy to which families are entitled.

What Now?

Despite contention surrounding its morality, the one-child policy generated substantial benefits for China’s development. It is estimated that the one-child policy prevented approximately 400 million births since its implementation, which in turn kept the poverty level from soaring. Exemptions were provided in cases of children with disability and families that belong to ethnic minorities. Couples were rewarded for their compliance through certificates that guaranteed interest-free loans, education subsidy, and longer periods of maternity leave.

 
On the other hand, this strict restriction caused widespread societal issues: rapid growth of elderly population, labor shortages, and high suicide rates that accompanies the pressure of being the only child in China’s prevailing culture of expectation. While the world is waiting to see the effect of the two-child policy, one must wonder if there could be an alternative that better ensures the preservation of human rights. The government could shift the emphasis of its policy from limitation of family size to incentivization for financially responsible family planning, while expanding coverages of welfare, social securities, and basic infrastructures. Although such structural changes often require decades to implement, they are necessary objectives for China; a country’s economic development is no excuse to compromise its citizens’ entitlement to universal human rights.

Fighting for their Families: A Landmark Victory for Women’s Rights in India

By Devon Fitzgerald

In a landmark case for women in India and equal rights on the global stage, an unnamed woman in New Delhi fought and won a case against her cousin brother (or male cousin) for the position of head of her joint family.

The ‘Karta’ is the head of a joint (or undivided) family, a common family structure in India comprised of multiple generations. In the context of traditional American family structures this would include grandparents, parents, aunts, uncles, siblings, and first cousins. The managerial position within this structure is reserved for the eldest male member of the joint family. This is especially important in regards to families who own businesses. The Karta makes decisions for the greater good of the family -- especially in regards to family maintenance and account keeping.

The family’s conflict began when the woman in question’s father and three uncles passed. As the eldest child of the eldest son, she felt she had the right to inherit this coveted position. However, the eldest son of a younger brother, by virtue of his gender,was technically next in line.

Still, the woman brought her case to the high court in New Delhi to test the limits of the standing law regarding joint family management.

The Hindu Succession Act was amended in 2005, granting women equal rights to inheritance. Based on this amendment, the high court in Delhi ruled in favor of the woman, arguing that it was hypocritical of the law to give equal rights to women in regards to inheritance of their joint family, but not the management of it.

The court’s Justice Najmi Waziri agreed, writing, “If a male member of a Hindu Undivided Family (HUF), by virtue of his being the first-born eldest, can be a karta, so can a female member.”

This ruling is a victory for women everywhere. The lack of coverage of this particular case leaves many unanswered questions. Mainly, what encouraged this unnamed woman to take her case to court? Was it the contrasting codification of the changing equal rights climate in India? What makes people question the longstanding norms and traditions all over the world? Where will these changes be made next? While women’s rights activists may still be unsure about the future of equality in India, they can find hope in the courage of this woman. Not only was she was willing to stand up to her family, but her passion pushed her to fight an unfair system which has treated women as second-class citizens for centuries. Where there may be uncertainty in what comes next, there is certainly solace in this small step towards equal rights under the law.

Starkest Illustration of The Death of Scalia

By Brett Mittler 

The following piece is a follow up to my previous Review of Friedrichs v. California Teachers Association - Union Case Before Supreme Court.

The most significant labor union controversy that had reached our nation’s high court in recent years has come to a halt. The one sentence result (“The judgment is affirmed by an equally divided Court.”) in the case of Friedrichs v. California Teachers Association will permit the system of agency fees for non-union teachers in California. This split ruling leaves the legal foundation surrounding this issue in tumult with the unions coming out on top, at least until the Supreme Court has a ninth Justice at some point in the future.                                

The only effect this ruling had was to leave untouched the ruling by the U.S. Court of Appeals for the Ninth Circuit. The issue has come full circle without any additional legal reasoning; the Court of Appeals ruling was bound by a previous Supreme Court precedent that upheld fees against a previous constitutional challenge. This case, Friedrichs, was supposed to revisit and build upon the prior ruling. Due to the 4-4 Supreme Court, the possibility of a constructive outcome pervaded us.

Back in January when Court heard the Friedrichs case, it seems that this was a shoo-in, a five-to-four split, that it was unconstitutional for unions representing government employees to charge fees to workers that they bargained for but were not members. This would even apply to fees that covered the cost of normal union negotiations, not specifically lobby or political advocacy fees.  

The death of Justice Scalia left the Court with little option but ending it with an even split. Sadly, there is little evidence that the Court made an effort to mitigate the split and come to a more productive conclusion. The result of the case set no legal precedent and thus leaves the constitutional issue up in the air. The lawyers involved in the case are set to file a rehearing petition, requesting that the case be heard in the new term beginning October 3rd in hopes of having another Justice on the bench by then. 

If the Court decides that they will not rehear the Friedrichs case, the only other option to confront the issue of agency fees would be the consideration of an entirely different case. This case would have to work its way through the lower courts again until it reached the Supreme Court. Lower courts will have to rely on similarly unhelpful legal foundations. We simply will not have an answer for the litigants in these cases until a new Justice is confirmed. When we finally have a nine-person Court, what will the next step be for union dues? Only time will tell, I suppose.

A Maryland Judge Just Ruled Against Warrantless Cell Phone Location Tracking. Here’s Why All States Should Follow Suit.

By Martin M. McSherry

On Wednesday, the Maryland Court of Special Appeals published a legal opinion by Judge Andrea Leahy that protects one’s constitutional right to privacy in the digital age. The opinion suppresses the evidence obtained by the Baltimore Police Department’s use of highly controversial cell site simulators - known colloquially as stingrays - to track down a murder suspect in his own home using signals from his cell phone.[1] Stingrays are invasive cell phone surveillance devices used by law enforcement that impersonate cell towers, tricking nearby cell phones into transmitting their locations and other identifying information.[2] The opinion finds that the use of a stingray, considered an “active cellular surveillance device,” obtains information not voluntarily shared with third parties and requires a warrant.[3]

Judge Leahy’s reasoning is sound. The opinion applies the test pronounced in Katz v. U.S., which determines that a Fourth Amendment search occurs when a person has an “actual expectation of privacy” that “society is prepared to recognize as ‘reasonable.’”[4] In Katz and other cases, the Supreme Court has found that the use of surveillance technology not available to the general public to gather information about the interior of a home (such as thermal imaging) constitutes a Fourth Amendment search.[5] Outside the home, the Court has ruled that the use of GPS data from a tracking device fixed to a car is also a Fourth Amendment search.[6] Even though a person traveling on public thoroughfares in a vehicle is visible to the public and “‘the eye cannot by the laws of England be guilty of trespass,’” the use of a stingray goes above and beyond visual surveillance.[7]

The result of allowing the unfettered use of cell-site simulators would be to effectively install a GPS monitoring device on every American of the type requiring a warrant in United States v. Jones. As Justice Sotomayor wrote in her concurrence in Jones, “Disclosed in [GPS] data… will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. The Government can store such records and efficiently mine them for information years into the future… Awareness that the Government may be watching chills associational and expressive freedoms.”[8]

Moreover, the ownership and use of a cell phone in contemporary American society is not voluntary; it is a requirement of day-to-day life. Maintaining a job in both white-collar and blue-collar settings often requires being on-call to answer emails, messages, or phone calls from colleagues or clients. Personal relationships, group memberships, and other associations often necessitate the use of cell phones. Perhaps citizens should forgo fancy smartphones to avoid such offensive invasions of privacy, one might suggest. Even an old, scratched, clunky Motorola Razr from 2004 is susceptible to cell-site simulators. It is unreasonable to establish surrendering this ubiquitous piece of technology as the price of admission to the realm of reasonable privacy protection. Doing so would lower the temperature of the chill on associational and expressive freedoms described by Justice Sotomayor to an arctic deep-freeze.

This rationale was embraced by the Justice Department in September, which issued a department-wide policy mandating all federal agents “obtain a search warrant supported by probable cause before using a cell-site simulator,” setting limited exceptions for exigent circumstances.[9] The legislatures in California, Washington, Virginia, Minnesota, and Utah have mandated that a warrant must be issued for the use of stingrays.[10] However, as State of Maryland v. Kerron Andrews demonstrates, many state and local police departments are not bound by this requirement.

In 2014, the ACLU of Florida obtained internal emails from the Sarasota Police Department through a public records request. The emails revealed that police falsely claimed in probable cause affidavits that information obtained from stingrays came from confidential informants.[11] “In reports or depositions we simply refer to the assistance as ‘received information from a confidential source regarding the location of the suspect,’” one email reads. “To date this has not been challenged…”[12] This deception is likely at play in other police departments, making it more difficult for defendants like Kerron Andrews to appeal their convictions by challenging unconstitutional surveillance techniques.

Instead of the piecemeal approach of waiting for legislatures and judges in every state to protect privacy, especially as the use of cell-site simulators is being concealed by police, Congress should act now to require a warrant to be issued before law enforcement at every level uses a stingray. In the absence of congressional action, the Supreme Court should review this issue and rule according to the precedent established in Katz, Kyllo, and Jones. Doing so would protect the constitutional rights to privacy guaranteed to all Americans.

________________

[1] State of Md. v. Kerron Andrews, 1496 Md. App. 1 (Md. Ct. Spec. App. 2016).

[2] Id., at 27.

[3] Id., at 26.

[4] Katz v. United States, 389 U.S. 347, 359 (1967).

[5] Kyllo v. United States, 533 U.S. 27, 33 (2001).

[6] United States v. Jones, 132 S. Ct. 945, 948 (2012).

[7] Knotts v. United States, 460 U.S. 276, 286 (1983).

[8] Jones, 132 S. Ct. at 955-56.

[9]  Dep't of Justice, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators (2015).

[10] Cyrus Farivar, Appeals Court: No Stingrays Without a Warrant, Explanation to Judge, ARS Technica, Mar. 31, 2016 at 1.

[11] Maria Kayanan, Internal Police Emails Show Efforts to Hide Use of Cell Phone Tracking, Am. Civ. Liberties Union, June 19, 2014 at 1.

[12] Id.