For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China

27 Pages Posted: 6 Oct 2016

See all articles by Marisa Silenzi Cianciarulo

Marisa Silenzi Cianciarulo

Chapman University, The Dale E. Fowler School of Law

Date Written: October 3, 2016

Abstract

This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal life in the United States. Finally, both China and the United States have means other than severe restrictions on reproductive freedom at their disposal to achieve the governments’ goals: broad access to birth control and sex education. This Article uses the lens of international human rights law to evaluate the concept of subordinating individual reproductive choice to a perception of the common good. Part II provides an overview of the major international instruments addressing individual rights and how they interact with the rights and responsibilities of the state. Part III discusses anti-abortion laws in the United States and the anti-abortion movement’s rationale that protecting prenatal life justifies limiting reproductive choice. Part IV discusses China’s vast and population control system and the government’s rationale that providing a controlled, sustainable population justifies limiting reproductive choice. Part V examines three levels of coercion – compulsory sex education and unrestricted access to contraception, monetary incentive and disincentive programs, and forced abortion and forced child-bearing – and analyzes whether they are consistent with international human rights principles. Finally, the Article concludes that in light of modern access to education and contraception, and the ability to reduce the incidence of unwanted pregnancies via those means, more coercive means are unnecessary (in the case of monetary incentives and disincentives) and unjustifiable (in the case of forced abortion and forced child-bearing).

Suggested Citation

Cianciarulo, Marisa Silenzi, For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China (October 3, 2016). Chapman University, Fowler Law Research Paper No. 16-16, Available at SSRN: https://ssrn.com/abstract=2847287 or http://dx.doi.org/10.2139/ssrn.2847287

Marisa Silenzi Cianciarulo (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714 628 2612 (Phone)

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