Abstract
Currently, abortion can be lawfully performed in China at any gestational stage for a wide range of social and medical reasons. I critically explore the Chinese regulatory model of abortion in order to examine its practical effects on women. Although I focus on the post-Maoist abortion law, I also analyse the imperial Confucianism-dominated regulation and the Maoist ban on abortion in order to scrutinise the emergence of the notion of ‘glorious motherhood’. By examining how ‘glorious motherhood’ is constructed and reinforced in the Chinese family planning context, I argue that the post-Maoist government intentionally made abortion ‘law in the books’ unrestrictive in order to impose its control over female fertility. As a result of this, women are persuaded and even forced to lead a ‘glorious’ maternal life, which means sacrificing themselves for the purpose of achieving the state’s Malthusian and eugenic demographic goals. Furthermore, I argue that, in addition to exacerbating gender oppression, abortion law’s embrace of the idea of ‘glorious motherhood’ also produces ‘group oppression’ of unmarried women and working-class women.
Similar content being viewed by others
Notes
Briefly, Section 1(1) of the Abortion Act 1967 (applicable in England, Wales and Scotland, but not Northern Ireland) states that there are four legal reasons for terminating a pregnancy: to save the pregnant woman’s life; to avoid serious permanent damage to her health; to avoid physical or mental harm to her or her existing children and when a serious foetal abnormality has been detected.
For the arguments for the right to life, see, for example, Finnis (1973).
The use of abortion drugs, such as mifepristone and misprotal tablets is also legal in China. However, because the administration of medical abortion is often more time consuming and makes less profit than the performance of surgical abortion, the main termination method recommended and adopted in both public and private medical institutions is still surgical in China. The abortion statistics collected annually by the National Family Planning Research Institution also includes surgical abortions only. For more information on the reasons why medical abortion is not promoted in China, see, for example, Winikoff et al. (1997) and Liu (2000).
For more information on the official response to the case of Feng, see http://www.ak.gov.cn/zwgk/akxw/2012/06/14/21184647170.shtml. Accessed 30 March 2015.
Self-abortions were temporarily prohibited between 1910 and 1948 when the nationalist government was in power. In the nationalist era, the government tried to modernise the imperial codification by copying Japanese codes, including its abortion law. Japan’s experience of copying German codes to reform its legal system motivated the nationalist government to follow suit. The criminal law stated that any woman who attempted to abort would be imprisoned for up to 5 years (see, for example, Kitagawa 2006, 240). However, the government did not effectively implement the law, and in reality there were not a great number of clinics with trained personnel where women could have an abortion (see, for example, Luk 1977, 390). Thus, the regulation of abortion in this special and short period is not considered as part of Chinese abortion law in this article.
For example, in the Tang Dynasty (618AD–709AD), the penalty for attacking a woman who was pregnant and causing a miscarriage was being kept in penal servitude for a term of two years, which was a slightly more serious punishment than for breaking two of a victim’s fingers or knocking out two of their teeth and a less serious punishment than for breaking someone’s limb or causing permanent blindness in one eye. Daming lü (the Ming Code), dated 1368, and Daqing lü (the Qing Code), dated 1646, imposed similar penalties on a person who attacked a pregnant woman and caused her miscarriage: they would receive about 80 heavy blows and serve two years of penal servitude (see, for example, Zhang 2012).
See Article 86 of the Constitution 1954. The Constitution 1954 was substantially revised in 1975, 1978 and 1982 and was partly amended in 1988, 1993, 1999 and 2004.
According to the Constitution 1954, the Communist Party is the only party that can be in power. Thus, some scholars put ‘party’ and ‘state’ together as there is no clear boundary between them (see, for example, Zhao 2006).
For the original text of Article 13 and Article 14 of the Constitution 1954, see http://www.npc.gov.cn. Accessed 10 March 2015.
According to the first national census, the total population of mainland China was about 601,938,035. See http://www.stats.gov.cn. Accessed 15 March 2015.
The Code of Legislation 2000 states that only the National People’s Congress (NPC) and the Standing Committee of the NPC can enact national primary legislation. In the Maoist era, there was no clear boundary between policies and laws. Law existed as an amalgam of constitutional duties, governmental normative documents, state policies and political leaders’ personal preferences (see, for example, Savage 1988). The regulatory methods were mainly state centred and coercion orientated (see, for example, Potter 2004).
For the original text, see Peng (1997, 889). What is set out here is my translation into English.
According to the first national census, the average births per married woman were about 6 between 1949 and 1954. See http://www.stats.gov.cn. Accessed 10 March 2015.
According to the first, second and third national censuses, the population had increased dramatically by 12 % in the period from 1954 (601,938,035) to 1964 (723,070,269). By 1982, the total population had increased to 1,160,017,381. See http://www.stats.gov.cn. Accessed 10 March 2015.
Fundamental state policies are jointly issued by the Central Committee of the Communist Party and the State Council. They are defined as the essential guidelines to be used by the party state to conduct internal and external affairs, such as legislation, administration and diplomacy, etc. (see, for example, Yang and Xu 1991).
The Central Committee of the Communist Party of China is in charge of convening the National People’s Congress and drafting and enacting fundamental state policies. For the original text of ‘The question of controlling the increase in the national population’ see http://cpc.people.com.cn. Accessed 11 March 2015.
In rural areas, if the couple’s first child is a girl, they are allowed to have the second child. As discussed below, the implementation of compulsory contraception has been relaxed since the start of the 2000s. For more information on the use of contraception among married couples after 2000, see, for example, Guo et al. (2006).
China’s current national family planning funding scheme only includes married couples. Married couples are eligible for certain contraceptive services, such as IUD, female and male sterilisation, and abortion within 12-week gestation. Other contraceptive methods, such as condoms, contraceptive and morning-after pills, and abortion after 12-week pregnancy (even on foetal abnormality grounds) are not included in the funding scheme. However, people can access the above services by paying by themselves. In practice, to avoid ‘out of quota’ births, the cadres in a local family planning centre check and record detailed information about local married women of reproductive age regularly. After they give birth to one or two children, the cadres persuade or even force them to use the two most commonly used contraceptive means, namely, IUD and female sterilisation.
For the use of prenatal genetic diagnosis, see, for example, Chen et al. (2004).
For the Rule of Family Planning enacted by other provinces, see http://law.hnadl.cn/web/index2.html. Accessed 19 March 2015.
The statistics are from the ‘China Twenty-first Century Population and Development’ White Paper. It was issued by the State Council in 2000. The White Paper summed up the completion of demographic tasks in the past decade and offered new plans for the new century. For the full text, see http://www.gov.cn/gongbao/content/2001.htm. Accessed 24 March 2015.
The rewards for having only one child vary from area to area. For example, in Shanghai, ‘one-child’ mothers will receive ¥30 (£3) per month, have a 120-day maternal leave and get two prenatal blood tests and one ultrasonic check free of charge in their community hospital. For more information on the policy of rewarding one-child mothers in Shanghai, see http://www.wsjsw.gov.cn/wsj. Accessed 25 March 2015.
For more information on China’s household registration system, see, for example, Cheng and Sheldon (1994).
Basic family planning services are oral contraception, condoms, abortion, female sterilisation and the IUD.
To apply for birth permission, the couple has to provide the local family planning centre with a marriage certificate, their ID cards, the household register, a 3-month pregnancy medical check report and a letter of reference issued by the couple’s neighbourhood committee to prove that they do not have any existing children or have only one child but qualify for having a second one according to the population policy.
The regulations, like the 2002 Rule, issued by the NPFPC are secondary legislation, whereas laws, like the 1994 Code and the 2002 Code, drafted and passed by the National People’s Congress are primary legislation.
The NPFPC announced that the male-to-female sex ratio of newborns reached 115:88 in 2014 and that the state ought to enact a new law to criminalise non-medical sex-selective abortions and give a more harsh punishment to those people who perform or have abortions of female foetuses. For more information, see http://finance.sina.com.cn/china/20150120/214321345253.shtml. Accessed 29 March 2015.
According to ‘The Report on the Chinese Aging Problems 2013’ issued by the Chinese Academy of Social Sciences, China needs to deal urgently with ageing and labour shortage problems, because the population aged over 60 years old was about 0.202 billion in 2013 and made up 14.8 % of the total population. Meanwhile, since 2011, the population aged between 15 and 60 has presented negative growth. In the period from 2011 to 2014, there was a decrease of 11 million in the labour population. For more information about this report, see http://www.cnki.net/KCMS/detail/detail.aspx. Accessed 2 March 2015.
References
Aird, John. 1991. Slaughter of the innocents: Coercive birth control in China. Washington: American Enterprise Institute Press.
Brownell, Susan, and Jeffrey Wasserstrom. 2002. Chinese femininities/Chinese masculinities. London: University of California Press.
Butler, Judith. 1990. Gender trouble: Feminism and the subversion of identity. London: Routledge.
CCP. 1980. Guanyu kongzhi renkouzengchang wenti gongkaishu [The question of controlling the increase in the national population] Xinhua News, 25 September. http://news.xinhuanet.com/ziliao/2005-02/04/content_2547034.htm. Accessed 5 April 2015.
Chen, Chang. 1970. On analogy in Ch’ing law. Harvard Journal of Asiatic Studies 30: 212–224.
Chen, Yingyao, Xu Qian, Zhiliu Tang, Jianwen Cao, Xiayan Huang, Hu Fangfang, Qian Wang, Jun Lv, and Xianghua Ying. 2004. Woguo chanqiansaichafuwu xianzhuang he cunzai de guanjianwenti [The status and key issues of prenatal genetic diagnosis in China]. China Health Quality Management 50: 11–13.
Cheng, Tiejun, and Mark Sheldon. 1994. The origins and social consequences of China’s hukou system. The China Quarterly 139: 654–668.
Chu, Jing. 2001. Prenatal sex determination and sex-selective abortion in rural central China. Population and Development Review 27: 259–281.
Duan, Hongqing. 2007. Zhongguo Jihuashengyu diyian [The first family planning case in China] China Value, 10 January. http://www.chinavalue.net/media/Article.aspx?ArticleId=10072&PageId=1.cn. Accessed 4 April 2015.
Ebenstein, Avraham. 2010. The “missing girls” of China and the unintended consequences of the one child policy. Journal of Human Resources 45: 87–115.
Fineman, Martha. 1995. The neutered mother, the sexual family and other twentieth century tragedies. London: Routledge.
Fineman, Martha. 2004. The autonomy myth: A theory of dependency. London: The New Press.
Finnis, John. 1973. The rights and wrongs of abortion. Philosophy and Public Affairs 2: 117–145.
Fletcher, Ruth. 2005. Reproducing irishness: Race, gender, and abortion law. Canadian Journal of Women and the Law 17: 365–404.
Guo, Sufang, Fengmin Zhao, and Tong Zhang. 2006. Woguo yulingrenmin biyuntaoshiyongqingkuang jiqi yingxiangyingsu [The use of condoms among married people and the reasons for this]. Chinese Journal of Public Health 22: 1–8.
Guo, Xiaoling. 2012. Weihuimama de shehuizhichi xitongfenxi [An analysis of social support for unmarried mothers]. Journal of Changchun University of Science and Technology (Social Sciences Edition) 25: 67–71.
He, Xia. 2011. Yuenan guanfang cheng zhongguo cheng yuenan Beiguai funü zuida quxiaoguo [The government of Vietnam announces that China has become the biggest destination for trafficking Vietnamese women]. Huanqiu News, 5 June. http://world.huanqiu.com/roll/2010-02/723337.html. Accessed 11 March 2015.
Hemminki, Elina, Wu Zhuochun, Guiying Cao, and Kirsi Viisainen. 2005. Illegal births and legal abortions: The case of China. Reproductive Health 2: 1–8.
Hou, Yafei. 2004. Guoce dao guofa: Zhongguojihuashengyulichenghuigu [From national policy to national legislation: A review of Chinese family planning]. Expanding Horizons 3: 8–29.
Huang, Yina, Mingqing Zhang, and Jianping Jiang. 2012. Daxuesheng hunqianxingxingwei he xingtaidu diaocha [A survey on premarital sex among college students and their perspectives]. The Chinese Journal of Human Sexuality 21: 19–23.
Hull, Natalie, and Peter Hoffer. 2001. Roe v Wade. Kansas: University Press of Kansas.
Jackson, Emily. 2001. Regulating reproduction. Oxford: Oxford University Press.
Jones, Kathleen. 1990. Citizenship in a woman-friendly polity. Signs 15: 781–812.
Kitagawa, Zentaro. 2006. Development of comparative law in East Asia. In The Oxford handbook of comparative law, ed. Mathias Reimann, and Reinhard Zimmermann, 220–269. Oxford: Oxford University Press.
Ko, Dorothy, and Wang Zheng. 2007. Translating feminisms in China. Australia: Blackwell.
Lee, Ellie (ed.). 1998. Abortion law and politics today. London: MacMillan Press.
Lee, Ellie. 2003. Abortion, motherhood and mental health. New York: Aldine de Gruyter.
Leslie, Charlotte. 2010. The “psychiatric masquerade”: The mental health exception in New Zealand abortion law. Feminist Legal Studies 18: 1–23.
Li, Yanhong, and Fenghua Liu. 2004. Woguo qingnian dui hunqianxingxingweide shehuitaidu fenxi [Attitudes towards premarital sex among people aged 16–35]. Journal of Nanjing College Population Program Management 20: 23–28.
Lim, Louisa. 2004. China fears bachelor future. BBC News, 5 April. http://news.bbc.co.uk/1/hi/world/asia-pacific/3601281.stm. Accessed 11 March 2015.
Liu, Fuyang. 2000. Yaowuliuchan yu xigongshuliuchan de bijiao [A comparative analysis of medical abortion and surgical abortion in China]. Chinese Journal of Practical Gynecology and Obstetrics 16: 594–597.
Luk, Berhard. 1977. Abortion in Chinese law. The American Journal of Comparative Law 25: 372–392.
May, Reinhard. 1985. Law and society East and West: Dharma, Li, and Nomos—their contribution to law and to life. Stuttgart: Franz Steiner.
Mungello, David. 2008. Drowning girls in China: Female infanticide since 1650. Plymouth: Rowman & Littlefield.
National Bureau of Statistics. 1954. The first national census statistics.
National Bureau of Statistics. 1964. The second national census statistics.
National Bureau of Statistics. 1982. The third national census statistics.
National Family Panning Research Institute. 2014. The family planning services statistics 2013. http://www.moh.gov.cn/zhuzhan/zsylxdw. Accessed 2 March 2015.
National Health and Family Planning Commission. 2014. China health year book 2013. http://epub.cnki.net. Accessed 14 March 2015.
Nie, Jing-bao. 1999. The problem of coerced abortion in China and related ethics issues. Cambridge Quarterly of Healthcare Ethics 8: 463–479.
Nie, Jing-bao. 2004. Feminist bioethics and the language of human rights in Chinese context. In Linking visions, ed. Rosemarie Tong, Anne Donchin, and Susan Dodds, 73–88. Oxford: Rowman & Littlefield.
Nie, Jing-bao. 2005. Behind the silence. Oxford: Rowman & Littlefield.
Nie, Jing-bao. 2010. Limits of state intervention in sex-selective abortion: The case of China. Culture, Health and Sexuality 12: 205–219.
Ma, Shu. 2012. Woguo nvxingzhuyi faxueyanjiu de huigu yu zhangwang [The review and prospect of Chinese feminist legal studies]. Hebei Law Science 30: 99–106.
Ortner, Sherry. 1972. Is female to male as nature is to culture? Feminist Studies 1: 5–31.
Peng, Peiyun (ed.). 1997. Zhongguo jihua shengyu [China family planning compendium]. Beijing: China Population Press.
Potter, Pitman. 2004. Legal reform in China: Institutions, culture and selective adaptation. Law and Social Inquiry 29: 465–495.
Pu, Qing. 2013. Shaonv chanzihou jingkong shazi [Two teenagers murdered newborns]. Sohu News, 19 March. http://roll.sohu.com/n369391118.shtml. Accessed 1 April 2015.
Qu, Zeren. 2005. Chusheng xingbiebi shitiao: Lunli, falv he shehui yinsu [The unbalanced sex ratio of newborns: Ethical, legal and social issues]. Medicine and Philosophy 26: 24–30.
Rigdon, Susan. 1996. Abortion law and practice in China: An overview with comparisons to the United States. Social Science and Medicine 42: 543–560.
Roberts, Dorothy. 1996. Race and the new reproduction. Hastings Law Journal 47: 935–949.
Savage, Mark. 1988. The law of abortion in the Union of Soviet Socialist Republics and the People’s Republic of China: Women’s rights in two socialist countries. Stanford Law Review 40: 1027–1117.
Savulescu, Julian. 2006. Sex selection: The case for. In Bioethics: An anthology, ed. Helga Kuhse, and Peter Singer, 129–132. Oxford: Blackwell.
Scharping, Thomas. 2003. Birth control in China 1949–2000: Population policy and demographic development. London: Routledge.
Shan, Juan, and Yanfeng Qian. 2009. Abortion stats cause for concern. China Daily News. http://www.chinadaily.com.cn/cndy/2009-07/30/content_8489906.htm. Accessed 9 March 2015.
Siegel, Reva. 1992. Reasoning from the body: A historical perspective on abortion regulation and questions of equal protection. Stanford Law Review 44: 261–381.
Sheldon, Sally. 1993. Who is the mother to make the judgment? The constructions of woman in English abortion law. Feminist Legal Studies 1: 15–21.
Sheldon, Sally. 1997. Beyond control: Medical power and abortion law. London: Pluto.
Smart, Carol. 1989. Feminism and the power of law. London: Routledge.
Thomson, Michael. 1998. Reproducing narrative. Aldershot: Ashgate Publishing.
Wang, Hui. 2008. Quzhengzhihua de zhengzhi: Duan20shiji de zhongjie yu 90 niandai [De-politicising China: Ending the 20th century and the 1990s]. Beijing: Sanlian Publishing.
Wang, Mingyang. 2010. Zhongguo guoxue jingdian [Studies of ancient Chinese civilisations]. Beijing: Guji Press.
Wang, Qiaochu, Xu Jian, and Ehua Zhao. 2013. Naotong wuzang lilunyanjiu yu linchuangyingyong [The study of wuzang theory and its clinical application]. Shanghai: Shanghai Kexuejishu Press.
Warren, Mary. 1985. Gendercide: The implications of sex selection. New Jersey: Rowman & Allanheld.
Wei, Xiangdong. 2008. Diaocha cheng qingshaonian xingxingwei riyi yanzhong [The serious problem of premarital sex and abortions among adolescent girls]. China News, 7 April. http://www.chinanews.com.cn/jk/kong/news/2008/04-07/1212923.shtml. Accessed 1 Aug 2015.
Winckler, Edwin. 2002. Chinese reproductive policy at the turn of the millennium: Dynamic stability. Population and Development Review 28: 379–418.
Winikoff, Beverly, Sivin Irving, Coyaji Kurus, Cabezas Evelio, Bilian Xiao, Gu Sujuan, Du Ming-Kun, Krishna Usha, Andrea Eschen, and Charlotte Ellertson. 1997. Safety, efficacy, and acceptability of medical abortion in China, Cuba, and India: A comparative trial of mifepristone-misoprostol versus surgical abortion. International family Planning Perspectives 10: 73–89.
Wu, Changzhen. 2011. Hunyin he jicheng fa [Marriage and inheritance law]. Beijing: China University of Political Science and Law Press.
Wu, Qingming, and Jian Zhou. 2011. Chushengquexian chanqiansaicha ji chanqianzhengduan yanjiujinzhang [Research progress on prenatal screening and prenatal diagnosis for birth defects]. Chinese Journal of Birth Health and Heredity 19: 129–131.
Xi, Xuan, and Chunming Jin. 2006. Wenhua dageming jianshi [A history of the cultural revolution]. Beijing: Central Party History Publishing House.
Xin, Hua. 2007. 85 % Chinese concerned by gender imbalance. China Daily News, 18 July. http://www.chinadaily.com.cn/china/2007-07/18/content_5438730.htm. Accessed 2 April 2015.
Xing, Lifeng, and Caixia Liu. 2005. Tianli yu renyu: Chuantong rujiashiyezhongde nvxinghunyin shenghuo [Heavenly principles and human desires: Women’s married lives looked at through a traditional Confucian lens]. Wuhan: Wuhan University Press.
Yang, Guangyu, and Zelin Xu. 1991. Jibenguoce: Liluntantao he jianyi [The state’s fundamental policies: Theory and suggestion]. Theoretical Exploration 12: 32–46.
Yang, Shuang. 2012. Fury over ‘forced abortion’. Global Times, 14 June. http://www.globaltimes.cn/content/714855.shtml. Accessed on 26 April 2014.
Zhan, Zhuan. 2013. Taobao jingxian duotaiyao [Abortion drugs sold on Taobao]. Guangming News, 16 August. http://tech.gmw.cn/2013-08/16/content_8624978.htm. Accessed on 15 July 2014.
Zhang, Weixin. 2012. Zhongguo gudai fazhishi [The legal history of ancient China]. Shanghai: Shanghai Renmin Press.
Zhao, Bingzhi, and Jianwei Zuo. 2005. Shilun Feifaxingyizui de Lifawanshan [A study of the crime of unlawfully performing family planning operation]. People’s Procuratorial Semimonthly 5: 12–17.
Zhao, Zhiyue. 2006. From commercialization to conglomeration: The transformation of the Chinese press within the orbit of the party state. Journal of Communication 50: 3–28.
Zhou, Yi, and Lan Xiang. 2015. Zhongguo meinian rengongliuchan 1,300wan [China has 13 million surgical abortions]. Wangyi News, 26 January. http://news.163.com/15/0126/05/AGS5I4SS00014AED.html. Accessed 4 April 2015.
Acknowledgments
Many thanks are owed to Julie McCandless who provided many helpful comments on earlier drafts of this article, and the two anonymous peer referees at Feminist Legal Studies for their insightful contributions in improving the piece. This study was funded by China’s Ministry of Education Project in Humanities and Social Sciences (Project No. 13YJC820002), the Philosophy and Social Science Planning Funding Project of Hunan Province (Project No. 14YBA104). The Scientific Research Foundation for the Returned Overseas Chinese Scholars in China also supported this work.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Cao, W. Exploring ‘Glorious Motherhood’ in Chinese Abortion Law and Policy. Fem Leg Stud 23, 295–318 (2015). https://doi.org/10.1007/s10691-015-9291-7
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10691-015-9291-7