China: Whether a National Population and Family Planning Commission directive prohibiting forced abortion and sterilization was issued in 2012 and implemented (2012-January 2015)

1. Legislation

For contextual and background information on the implementation of family planning regulations, please refer to Responses to Information Requests CHN104963 and CHN104185.

Sources report that a spokesperson for the National Health and Family Planning Commission (NHFPC) held a press conference in January 2014, stating to the media that forced late-term abortions are "banned" in China (The Times of India 9 Jan. 2014; Xinhua 7 Jan. 2014), as is the "enforcement of family planning policy carried out in a brutal way" (ibid.). In correspondence with the Research Directorate, an associate professor at Oxford University who specializes in population and policy in Asia stated that a 2006 NHFPC regulation says that "forced operations" such as abortion and sterilization are banned (Associate Professor 26 Jan. 2015).

Article 4 of the 2002 Population and Family Planning Law of the People's Republic of China states the following:

When promoting family planning, the people's governments at all levels and their staff members shall perform their administrative duties strictly in accordance with law, and enforce the law in a civil manner, and they may not infringe upon legitimate rights and interests of citizens. (China 2002)

However, sources note that the Population and Family Planning Law does not define these rights and interests (US 9 Oct. 2014, 104; Australia 8 Mar. 2013, 14). According to a specialist in Chinese law at the University of California at Berkeley, commenting in the Wall Street Journal (WSJ) on the situation of two women in China who were forced to undergo late-term abortions in 2012, under Chinese law "[t]here is little likelihood that these women can obtain a clear legal decision that their rights have been violated" (WSJ 4 July 2012). According to the US Department of State's Country Reports on Human Rights Practices for 2013, "[r]egulations requiring women who violate family-planning policy to terminate their pregnancies still exist in Liaoning and Heilongjiang provinces," while other provinces, Fujian, Guizhou, Guangdong, Gansu, Jiangxi, Qinghai, Shanxi, and Shaanxi require "unspecified 'remedial measures'" in order to manage "unauthorized pregnancies" (US 27 Feb. 2014, 55). An analysis of family planning regulations done by the US Congressional-Executive Commission on China (CECC) in 2013 found that, in at least 22 of China's 31 provincial-level jurisdictions [1], family planning regulations "explicitly instruct officials to implement abortions, often referred to as 'remedial measures' (bujiu cuoshi), for 'out-of-plan' pregnancies, with no apparent requirement for parents' consent" (ibid. 9 Oct. 2014, 104).

2. 2012 Shaanxi Province Late-term Forced Abortion Case and State Response

Sources report that, in June 2012, local officials in Shaanxi Province forced Feng Jianmei to undergo an abortion seven months into her pregnancy (Xinhua 27 June 2012; WSJ 4 Jul. 2012); photos of the woman and her aborted infant circulated online and the case became "widely publicized" (ibid.). Xinhua News Agency reported that the woman had not paid the "deposit" for a certificate for her second pregnancy and that the abortion case "shocked and angered many people nationwide" (27 June 2012). According to the Global Times, a Beijing-based English-language newspaper (n.d.), the woman claimed that local family planning officials forced her to sign an agreement to undergo the abortion, and national and provincial-level family planning authorities investigated the incident (14 June 2012). The Associate Professor, without naming the woman, described similar events in June 2012 (26 Jan. 2015). According to the Global Times, the authorities issued a statement saying that "late abortions should be prevented" (14 June 2012).

In September 2012, All Girls Allowed (AGA), an American faith-based organization dedicated to "exposing the injustice of China's One-Child Policy [and] rescuing girls and mothers from gendercide" (AGA n.d.), announced that certain provinces of China "banned" late-term abortion (CP 18 Sept. 2012; AGA 25 Sept. 2012; ibid. 11 Sept. 2012), in a "directive," following the media exposure over Feng Jianmei's forced abortion (ibid.). AGA published a report on its website in September 2012 in which the group noted that, since July 2012, 23 of China's 31 provinces and municipalities had "adopted language" banning late-term forced abortion (ibid. 25 Sept. 2012; US 10 Oct. 2013, 101). The US CECC, in its 2013 analysis, said that AGA had found variations of phrases "prohibit" (jinzhi or yanjin) or "put an end to" (dujue) "late-term abortions" (dayuefen yinchan) [2] (ibid., note 54). AGA reported that it had found language of this kind published in government statements from Anhui, Beijing, Chongqing, Fujian, Gansu, Guangdong, Guizhou, Hebei, Henan, Hubei, Hunan, Jilin, Jiangsu, Jiangxi, Liaoning, Inner Mongolia, Qinghai, Shandong, Shaanxi, Shanxi, Sichuan, Yunnan, and Zheijiang [3] (AGA 25 Sept. 2012, 1; US 10 Oct. 2013, note 31). AGA reported that it had found the announcements on official government websites of "either the central National Population and Planning Committee or local government websites" (AGA 25 Sept. 2012, 1).

However, media sources indicate that non-government advocacy groups that work on issues of family planning in China disagreed with AGA's interpretation that these 2012 statements constituted a new directive to "ban" forced abortions (CP 18 Sept. 2012; Christianity Today 18 Sept. 2012). Women's Rights Without Frontiers (WRWF), a "non-profit, non-partisan international coalition to combat forced abortion, gendercide and sexual slavery in China" (WRWF 31 July 2012), was reported to have stated that the documents cited by AGA "make no mention of early and mid-term abortions" and stated that the AGA's statement was based on government "'rhetoric'" that "reiterate the existing federal law" (Christianity Today 18 Sept. 2012). The China Aid Association, "an international non-profit Christian human rights organization committed to promoting religious freedom and the rule of law in China" (ChinaAid n.d.), stated in September 2012 that the evidence cited by AGA were government "oral statements" and "there is no evidence yet of it being put into practice or of action having been taken" (ibid. 26 Sept. 2012). ChinaAid stated that, moreover, "forced abortions are still being performed" (ibid.). The President of the Population Research Institute (PRI), a "non-profit research group whose goals are to expose the myth of overpopulation," which is made up of a "network of pro-life groups" in over 30 countries (PRI n.d.), in response to the AGA report, stated that reports that the government has ended forced abortion practices are "premature" and that women continue to undergo arrest, abortions, and sterilization "against their will" (ibid. 17 Sept. 2012). In correspondence with the Research Directorate, a professor of political science and global affairs at the City University of New York explained that, in 2012, the Director of the National Population and Family Planning Commission gave two speeches in which she stated that late-stage abortions "should be banned" (25 Jan. 2014). The Professor of political science expressed the view that the 2012 speeches by the Director of the National Population and Family Planning Commission "does not mean a comprehensive ban on forced abortion" and that, furthermore, the government continues to "stress the priority of controlling population growth" through the use of "coercion and inhuman practices" (25 Jan. 2015). Similarly, the Associate Professor at Oxford University, stated that, to the best of the source's knowledge, stated that there is no "specific" 2012 directive banning forced abortion and sterilization; however, in the context of the case in Shaanxi, there was a "restatement of the illegality of forced abortion" (26 Jan. 2015).

3. Reports of Forced Abortion Since 2012

The US CECC states in its 2013 analysis that, following the 2012 public announcements, which were reported by AGA as using language "banning" late-term abortion, "officials in these jurisdictions continued to use forced late-term abortions to implement family planning policies," citing 2012 examples of late-term forced abortions and forced sterilizations in Guizhou, Hubei, Anhui, Shandong, Guizhou, Henan and Yunnan (US 10 Oct. 2013, 101-102).

The CECC further reported, in 2014, that official government reports from a number of jurisdictions across China continued to use language promoting first-trimester, mid-term, and late-term abortions as a "remedial measure" (ibid. 9 Oct. 2014, 104). In correspondence with the Research Directorate, the President of the WRWF similarly stated that, since 2012, there have been "numerous documented forced abortions in China -- as well as other serious human rights abuses associated with coercive family planning ... regardless of the status of any directive" and that "China does not operate under effective rule of law" (13 Jan. 2015). Amnesty International (AI) testified before a 2013 US House Committee on Foreign Affairs hearing on human rights in China that, although the Chinese government "allegedly" has instructions saying that the practice of forced abortions and forced sterilizations should not occur, the group has documented cases of women undergoing forced abortion and forced sterilization (CQ 9 Apr. 2013).

According to the June 2014 Second Periodic Report on China by the UN Committee on Economic, Social and Cultural Rights, although legislation on family planning "prohibits the use of coercive measures," the Committee "remains seriously concerned" about reported instances of coercion including forced abortion and forced sterilization (UN 13 June 2014, para. 26). Other 2014 sources also report that family planning authorities continue to use measures such as forced abortion to enforce family planning policy (US 27 Feb. 2014, 55-56; Human Rights Watch 2014; Freedom House 21 January 2014; US 9 Oct. 2014, 103), as well as forced sterilization (ibid; Freedom House 21 January 2014). Freedom House notes, though, that compulsory abortion and sterilization occurs "less frequently than in the past" (ibid.).

4. Punishment of Officials for Forced Abortion

Sources report that punishments for officials who breach family planning regulations are not stipulated in Chinese law (US 10 Oct. 2013, 100; Associate Professor 26 Jan. 2015).

According to Xinhua, in the 2012 case of Feng Jianmei's forced abortion in Shaanxi, the Ankang municipal government investigated the incident, dismissed the head of the county family planning bureau, gave "administrative demerits" to the deputy county magistrate in charge of family planning, and punished other local government and hospital officials (27 June 2012). The Wall Street Journal reported that two officials were fired and five were given warnings or demerits (4 July 2012).

In a 2014 article about a forced abortion on a woman in Hunan who was seven months pregnant, the Associated Press (AP) indicated that "no one has been held accountable" and the couple went to Beijing to petition higher officials in December 2013 (9 Jan. 2014).

AI's 2013 testimony before the US House Committee on Foreign Affairs indicated that the group had not seen "even one" prosecution or punishment of a government official involved in forced abortion and sterilization (CQ 9 Apr. 2013). According to the Professor of political science, "punished officials often are transferred to another location or government branch without suffering any loss of salary or demotion" (25 Jan. 2015).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The 22 jurisdictions listed by the CECC are: the municipalities of Tianjin and Chongqing; the provinces of Liaoning, Jilin, Guangdong, Fujian, Hebei, Hubai, Shaanxi, Shanxi, Henan, Qinghai, Jiangxi, Sichuan, Anhui, Gansu, Yunnan, Guizhou, Hunan and Hainan; and the Nignxia Hui and Xinjiang Uyghur Autonomous Regions (US 9 Oct. 2014, note 34).

[2] "Late-term abortion" (dayuefen yinchan) usually refers to abortions performed at 14 to 28 weeks of gestation, according to the US CECC (US 10 Oct. 2013, note 53).

[3] Provincial-level jurisdictions not included on the CECC list are Guangxi Zhuang, Hainan, Heilongjiang, Ningxia Hui, Shanghai, Tianjin, Tibet, Xinjiang (US 10 Oct. 2013, note 31).

References

All Girls Allowed (AGA). 25 September 2012. Chinese Provinces That Banned Late-Stage Abortion Following Feng Jianmei's Forced Abortion. [Accessed 13 Jan. 2015]

_____. 11 September 2012. "Update on the Chinese Government's Document Banning Late-term Forced Abortion." [Accessed 13 Jan. 2015]

_____. N.d. "Who We Are." [Accessed 23 Feb. 2015]

Associated Press (AP). 9 January 2014. Didi Tang. "Forced Abortion Highlights Abuses in China Policy." [Accessed 26 Jan. 2015]

Associate Professor, Oxford University. 26 January 2015. Correspondence with the Research Directorate.

Australia. 8 March 2013. Migration Review Tribunal and Refugee Review Tribunal. China: Family Planning. Background Paper. [Accessed 26 Feb. 2014]

China. 2002. Population and Family Planning Law of the People's Republic of China. [Accessed 26 Jan. 2015]

China Aid Association. 26 Septempter 2012. "CAA: Beware of Naïve Rumours: 'The Chinese Government Has Begun to Ban Forced Abortions and Forced Sterilizations'." [Accessed 29 Jan. 2015]

_____. N.d. "Our Mission." [Accessed 29 Jan. 2015]

Christianity Today. 18 September 2012. Melissa Steffan. "Advocacy Groups Disagree Whether China Has Banned One-Child Policy Forced Abortions." [Accessed 13 Jan. 2015]

The Christian Post (CP). 18 September 2012. Lillian Kwon. "China Has Not Banned Forced Abortion, Groups Insist." [Accessed 29 Jan. 2015]

Congressional Quarterly (CQ). 9 April 2013. "Rep. Christoper H. Smith Holds a Hearing on Chen Guangcheng and Gao Zhisheng: Human Rights in China - Committee Hearing." (Factiva)

Freedom House. 2014. "China." Freedom in the World 2014. [Accessed 9 Jan. 2015]

Global Times. 14 June 2012. Yan Shuang. "Fury Over 'Forced Abortion'." [Accessed 20 Jan. 2015]

_____. N.d. "About Us." [Accessed 2 Mar. 2015]

Human Rights Watch. 21 January 2014. "China." World Report 2014: Events of 2013. [Accessed 12 Jan. 2015]

Population Research Institute (PRI). 17 September 2012. Forced Abortions Continue in China, Steven Mosher Says. [Accessed 29 Jan. 2015]

_____. N.d. "Who We Are." [Accessed 29 Jan. 2015]

Professor of political science, City University of New York. 26 January 2015. Correspondence with the Research Directorate.

The Times of India. 9 Jan. 2014. Saibal Dasgupta. "As 1-kid Rule Ends, China Bans Forced Abortions. [Accessed 26 Feb. 2015]

United Nations (UN). 13 June 2014. Economic and Social Council. Concluding Observations on the Second Periodic Report of China, Including Hong Kong, China, and Macao, China. (E/C.12/CHN/CO/2) [Accessed 19 Jan. 2015]

United States (US). 9 October 2014. Congressional-Executive Commission on China (CECC). Annual Report 2014. [Accessed 13 Jan. 2015]

_____. 27 February 2014. "China (Includes Tibet, Hong Kong, and Macau)." Country Reports on Human Rights Practices for 2013. [Accessed 13 Jan. 2014]

_____. 10 October 2013. Congressional-Executive Commission on China (CECC). Annual Report 2013. [Accessed 13 Jan. 2015]

The Wall Street Journal (WSJ). 4 July 2012. Stanley Lubman. "The Law on Forced Abortion in China: Few Options for Victims." China Real Time. [Accessed 23 Jan. 2015]

Women's Rights Without Frontiers (WRWF). 13 January 2015. Correspondence from the President to the Research Directorate.

_____. 31 July 2012. Complaint Concerning Coercive Population Control in China. Letter to the United Nations Commission on the Status of Women (UNCSW). Sent to the Research Directorate by the President 13 January 2015.

Xinhua News Agency. 7 January 2014. "Official Vows Stiff Penalties for Late-term Abortions." [Accessed 23 Feb. 2015]

_____. 27 June 2012. "Officials Punished for NW China Forced Abortion." [Accessed 23 Jan. 2015]

Additional Sources Consulted

Oral sources, including: Attempts to contact the following were unsuccessful within the time constraints of this Response: Laogai Research Foundation.

Human Rights in China could not provide information within the time constraints of this Response.

Internet websites, including: Amnesty International; China - National Health and Family Planning Commission; ecoi.net; Human Rights Watch; Radio Free Asia; South China Morning Post; United Nations - Refworld.