[Paleopsych] Houston J. Int. Law: Yin and yang: the eugenic policies of the United States and China: is the analysis that black and white? Gail Rodgers
Premise Checker
checker at panix.com
Sat Apr 2 15:56:00 UTC 2005
Yin and yang: the eugenic policies of the United States and China: is
the analysis that black and white? Gail Rodgers
Houston Journal of International Law, Fall 1999 v22 i1, p129
If in the First Act you hang a gun upon the wall, by the
Third Act you must use it. --Chekhov
I. INTRODUCTION
As technological and scientific advances proliferate,
innumerable questions regarding legal, cultural, ethical, and human rights
issues arise begging for answers. In the ever-broadening global climate of
economics and human rights, politicians and world leaders are more
frequently asking about the impact of these technologies on the policies
of countries around the world. More specifically, as genetic and
reproductive options are enlarged, their effects elicit questions related
to procreative rights, discrimination, and population policy. The purpose
of this comment is to analyze the eugenic practices and policies of the
United States and China, and comment on their respective human rights
implications.
This Comment will outline the development of the
eugenics movement and how eugenic practices have largely been abandoned in
the United States. This will be contrasted with the continuing eugenic
sterilization practices in China. This comment will also distinguish the
social goals of sterilization policies in both countries. It will
recognize as the primary distinction in policy the fundamental choice of
whether to subordinate the well being of the individual to the well being
of society. In addition, it will discuss the permissive genetic policies
in the United States which may implicitly endorse eugenic practices.
II. EUGENICS DEFINED
For many, the term "eugenics" conjures up some image of
a science fiction experiment gone amuck. The film industry has produced
enough movies of aliens bred to have certain omnipotent or omniscient
capabilities to somewhat justify that notion. However, the term "eugenics
" comes by this connotation honestly, as it was first widely discredited
in connection with atrocities of Nazi policies in Germany.(1)
Surprisingly, the beginning of eugenics comes from a more palatable
background. Plato was one of the earliest theorists to advocate the
betterment of the human race by choosing the correct mate.(2) The term
"eugenics " comes from the Greek word meaning "well born."(3) It was
coined by Charles Darwin's cousin, Francis Galton, who defined it as "the
science of improving stock."(4) Bertrand Russell, a British philosopher,
described it as more of a social movement than a science in that it
"attempt[s] to improve the biological character of a breed by deliberate
methods adopted to that end."(5) There is some controversy over the
definition of eugenics and how broadly the term sweeps. Much of the
controversy focuses on whether eugenics should be defined in terms of the
intent of the policies or their consequences.(6) However, all eugenicists
share the common belief that "individual desires should be subordinated to
a larger public purpose."(7)
The definition of eugenics can be further delineated
into "positive" and "negative" eugenics. Positive eugenics is similar to
Plato's view which attempts to improve the race through selection and
maximization of "socially desirable" genes.(8) In this instance,
eugenicists try to manipulate genes or the mating of genes to increase the
incidence of "positive" or "desirable traits."(9) This can be contrasted
with the more controversial negative eugenics which seeks to eliminate
those "bad" or "undesirable" genes or traits from the gene pool.(10) The
most infamous example of negative eugenics was Hitler's attempt in the
Lebensborn Project to produce "good babies."(11) Accounts vary as to the
actual numbers, but historians agree that Hitler had as many as sixty to a
hundred thousand "unfit" persons sterilized in an attempt to prohibit
reproduction by defectives and eliminate their bad genes from the human
race.(12) Eugenicists believed that through the use of both positive and
negative eugenics they could eliminate many so-called hereditary defects
such as mental retardation, criminality, and mental illness, and thereby
eradicate many social problems.(13) Negative eugenics such as
sterilization would discourage or prevent the socially undesirable from
procreating, while positive eugenics would encourage the reproduction of
those with socially and culturally desirable traits.(14)
Modern discussions of eugenics include the discipline of
genetics, and whether genetics is a new or camouflaged type of
eugenics.(15) Scientists acknowledge the horrific past of eugenics, and
are cautious to delineate the genetic discipline from that of
eugenics.(16) One modern geneticist compared the definition of eugenics to
the definition of the term "freedom," in the sense that "it's meaning `is
so porous that there is little interpretation that it seems able to
resist.'"(17) A broader definition of eugenics includes almost any type of
pre-natal genetic testing because this testing invariably includes the
systematic selection of fetuses.(18) However, many geneticists define
eugenics on much narrower terms that include a social aim and coercive
means.(19) The various definitions used for eugenics depend on the
author's political intention and desire to associate or dissociate it from
past eugenic practices.(20) Another thorny issue in the definition of
eugenics is that the aim of the policy is often considered in deciding
whether or not the policy is eugenic.(21)
III. HISTORY
A. Eugenic Theory
The roots of eugenics are planted in the 19th century
experiments of Francis Galton's cousin, Charles Darwin.(22) Darwin's work
on evolution lent itself to an application to social problems.(23)
Social theorists began first in Europe, and then in the
United States, to compare the improvement of society to the evolution of
the species.(24) Galton elaborated on the social aspects of Darwin's
theories, and began studying traits in family trees.(25) Galton concluded
that many physical and psychological traits were inherited, and that as a
result, manipulative breeding could produce persons with desired
traits.(26) Many eugenicists of the time believed that "feeblemindedness"
or mental disability was an inherited recessive trait.(27) Consequently,
they felt sterilization of the mentally disabled would solve the problem
and improve society.(28) Eugenicists further linked intelligence (or lack
thereof) with social adequacy and virtue, and predicted the morality of
certain people based on their intelligence.(29)
It was not difficult for proponents of eugenics to
gather support for their theories, as genetic diseases and mental
disabilities impacted both the affected person's family and society.(30)
The economic realities of caring for the mentally disabled, combined with
the misunderstanding of mental illness and fear of the degeneracy of the
human race, fueled a drive in the United States for the sterilization of
the mentally disabled.(31)
B. Historical Eugenics in the United States
As eugenicists analyzed American societal problems in
the late 1800s, they came to rely on the assumption that nearly all social
ill resulted from heredity.(32) In addition, several researchers claimed a
dramatic increase, in some reports as much as 200%, in the incidence of
feeblemindedness.(33) The initial encroachment of eugenics into the arena
of the feebleminded began with an 1890s Connecticut law that prohibited
"epileptics, imbeciles, and feebleminded persons from marrying or having
extramarital relations before age forty-five."(34) During this time
period, although there were no laws expressly authorizing sterilization,
human sterilization was practiced in many states on people in penal and
mental institutions.(35)
After Pennsylvania and Michigan unsuccessfully attempted
to pass bills for sterilization of the feebleminded, Indiana became the
first state to pass a statute permitting the sterilization of
institutionalized criminals, rapists, imbeciles, and idiots.(36) Another
of the initial sterilization statutes was legislated in California, partly
in response to the influx of "racially inferior" Chinese and Mexicans.(37)
In the early twentieth century, the rise of sterilization was very rapid,
with twenty-three states having some form of sterilization statute by
1925.(38) Although many of the statutes had little or no legislative
history and were passed for a variety of "defectives," virtually all were
modeled to some degree after the Indiana statute which provided that if
two physicians certified that there was no chance of "improvement" in the
person, they could be sterilized without consent.(39)
Many of these laws did little to protect individual
rights.(40) Accordingly, some were declared unconstitutional on grounds of
equal protection, due process, or cruel and unusual punishment.(41) Some
courts, however, upheld the statutes on the basis of protecting the
race.(42)
The breakthrough for the eugenic campaign came in 1927
in the infamous Buck v. Bell case.(43) The Supreme Court upheld a Virginia
statute requiring that patients in institutions who suffered from
"hereditary" forms of mental illness be sterilized as a condition of their
release.(44) In one of his most quoted decisions, Justice Holmes rejected
the due process claim and the equal protection claim on the basis that
sterilization was beneficial to both the patient and society.(45) Carrie
Buck was a woman who, along with her mother before her, had been
institutionalized for feeble-mindedness.(46) Carrie was an illegitimate
child, and had mothered an illegitimate child who was also believed to be
feeble-minded.(47) Justice Holmes upheld the statute authorizing
sterilization to prevent the parenting of "socially inadequate offspring"
on the grounds that "[t]hree generations of imbeciles are enough."(48)
Justice Holmes' opinion is most notable for the fact that he accepted and
endorsed the eugenic theories without reservation, gave no thought to
procreation as a right, and never questioned whether feeblemindedness was
actually hereditary.(49)
The era following Buck v. Bell consisted of nearly
thirty states either enforcing previously unused sterilization statutes,
or passing compulsory sterilization statutes to correct what they saw as a
serious social problem.(50) Although numerous statutes were passed and
sterilization of the feebleminded occurred in most states, the prediction
that Buck would dramatically increase the eugenic sterilization practice
was largely overestimated.(51) The actual peak in sterilizations occurred
about the time that Buck was decided, but the popularity of the eugenic
campaign was already losing ground.(52) As advances were made in genetic
research and other disciplines such as psychology and sociology became
popular, the eugenic movement lost momentum as other explanations became
available for mental disability.(53) Another contributor to the decline in
popularity of eugenics was the discovery of the Nazi atrocities based on
eugenic ideas, and American revulsion at this blatant racism.(54)
The turning point in American sterilization law came in
1942 when the Supreme Court decided Skinner v. Oklahoma.(55) In this case,
the Court held that procreation is a fundamental right; therefore, any
statutes affecting this right to reproduction should be strictly
scrutinized by the courts.(56) The court realized that "[t]he power to
sterilize, if exercised, may have subtle, far-reaching and devastating
effects. In evil or reckless hands it can cause races or types which are
inimical to the dominant group to wither and disappear."(57) In Griswold
v. Connecticut,(58) the Supreme Court began expanding the rights to
reproductive privacy, based on that fundamental right to procreate.(59) In
contravention of the Buck decision which didn't consider procreation as a
right, the watershed case of Roe v. Wade(60) held that the right to
privacy to procreate included the right to an abortion.(61) As a result of
scientific and social developments and the birth of the right to
procreate, many states have questioned and repealed their eugenic
sterilization statutes.(62) As the pendulum of eugenics and reproductive
freedom swings the other way, some cases involve the sterilization of
incompetents for non-eugenic, even habilitating reasons.(63)
C. Historical Eugenics in China
Chinese eugenic policies are unlike the U.S. policies,
because they are rooted in a desire for population control.(64) The
Chinese began aggressive population policies after the Communist takeover
in 1949.(65) In that era, the government implemented very pro-natalist
policies to encourage the growth of the population and to improve
socioeconomic development.(66) By the mid 1960s, that campaign was largely
reversed, as Chinese officials realized the impact of famine and economic
hard times on their country.(67) Communist Party leader Deng Xiaoping put
a screeching halt to the population expansion with his plan of social
modernization.(68) The government began urging family planning by limiting
couples to two or three children and later promoting the one-child family
as the norm.(69)
This campaign did slow the population growth. However,
Chinese officials continued to worry about the relative scarcity of arable
land to support the burgeoning population.(70) "In 1979, the Chinese
leadership, faced with demographic data supporting the contention that
rapid population growth would slow economic growth, revised their strategy
and launched the PRC's One Child Policy."(71) This policy, although not a
national law, limited couples to one child per family, and was outlined in
numerous Communist Party directives.(72) In 1980, The Marriage Law was
enacted and mandated family planning and restricted couples from marrying
before proscribed ages.(73) In addition, the 1982 Chinese Constitution
mandated that the entire country should practice family planning.(74)
Chinese population policy, while arguably innocuous on
its face, has elicited international outrage because of the methods used
to implement it.(75) Although Chinese officials vigorously deny human
rights abuses, numerous reports support the fact that both coercion and
force are used to ensure success of the One Child Policy.(76) Although the
government has acknowledged that mass sterilization campaigns occur in
rural areas, they blame these excesses on local officials.(77) Directives
issued in both 1982 and 1991 urged the provinces to maintain strict
enforcement of the policy.(78) There are numerous reports of forced
abortions and sterilizations, late term aborted babies allowed to die,
infanticide, and abandonment of female infants.(79) In addition to force,
coercive means such as economic and job sanctions, threats, and community
pressure are used on both potential parents.(80) Government officials view
these practices as more favorable than allowing uncontrolled population
growth which they fear would lead to poverty, high infant mortality rates,
and malnutrition.(81)
In addition to sterilization for population control,
China has also implemented programs to sterilize the mentally retarded for
eugenic reasons.(82) Included in the 1986 guidelines for the regulation of
childbearing were provisions that prohibit people with histories of mental
illness, retardation, or hereditary disease from having children.(83) In
1986, the Ministry of Health also released the Guiding Criteria for
Classification of Abnormal Cases which listed four groups of people who
are permitted to marry but not allowed to have children.(84) "These
include couples in which both spouses are born deaf-mute due to a
hereditary disease or disorder, or in which at least one spouse has
hereditary schizophrenia, manic depression, or heart disease."(85) The
government's apparent purpose in implementing these laws is to reallocate
resources to more productive projects than spending the money on disabled
individuals.(86) Many provinces passed similar laws in the late 1980s. For
example, Shandong Province passed a law in 1989 stating "`[t]hose who have
been found to have the possibility to give birth to severely defective
babies or babies with severe hereditary diseases ... should be banned from
having children; if pregnant, the pregnancy should be terminated.'"(87)
Other provinces have similar laws providing that "`[i]f one spouse is
insane (chi), an idiot (dai), or a fool (sha), or has any other hereditary
disease likely to cause severe defects in descendants, that spouse should
be sterilized.'"(88) The Gansu province in China, which has the most
comprehensive eugenics measures, defines the term "idiot" as an individual
whose IQ is below 49 and who has cognitive and behavioral
difficulties.(89) Much of the scientific community has long rejected the
assumption that individuals with mental disabilities will automatically
reproduce children with the same defects.(90)
Another instance of implicit eugenics in China is the
widespread practice of prenatal sex selection in favor of male babies.(91)
Reports of this discrimination against female babies are best illustrated
by a shift in the birth ratio of boys to girls.(92) The state family
planning figures from April of 1993 indicate that the ratio was 100 girls
for every 111.3 boys born.(93) This figure is drastically different than
the worldwide ratio of 100 girls for every 106 boys, which was the ratio
in China prior to the One Child Policy.(94) The deputy head of the Family
Planning Commission attributed this discrepancy in part to the ancient
belief, especially common in rural areas, that only boys can carry on the
family line.(95) Although doctors are legally barred from revealing the
sex of a fetus, even small rural Chinese towns have ultrasound machines,
and reports indicate that healthcare workers will accept bribes to reveal
the baby's sex.(96) There are also reports of female babies that are
hidden, abandoned, killed, or given away in the hopes that the couple can
have a second male baby without the mandated fines and penalties.(97)
Although the provinces have laws officially prohibiting violence against
baby girls, the regulations prove ineffective because of their lack of
specific penalties and enforcement procedures.(98) In addition, Chinese
law rarely punishes crimes, unless the victim or the family presses
charges which is unrealistic in the case of infanticide.(99)
The Chinese government recently adopted the Maternal and
Infant Health Care Law, previously known as the Eugenics Law.(100) This
law represents an attempt by the Chinese government to not only decrease
the quantity of the population, but also to increase the quality.(101)
This provision will be discussed at length in section V following.
IV. MODERN UNITED STATES EUGENICS POLICY
A. Eugenic Theory
Although the United States has generally rejected
eugenics as a policy for social improvement, there are still some
applicable uses for the old statutes permitting sterilization of the
mentally disabled.(102) With current political themes of reproductive
privacy, and a newfound desire to protect the mentally incapable, some
sterilization statutes have been upheld and found beneficial based on a
rationale of the disabled person's right to make procreative choices.(103)
Three emerging themes are responsible for the transformation of
sterilization law: "the discrediting of the eugenic theory, the
development of the constitutional doctrine of reproductive privacy, and
the changing conception of mental retardation."(104) Current laws reflect
a societal distaste for the historical use of eugenics, and a fear of
intrusion on individual liberties.(105)
The reports of sterilization in Nazi Germany fueled the
outcry against eugenic sterilization laws.(106) Subsequently, reproductive
rights gained importance with the development of the constitutional
doctrine of reproductive privacy.(107) In addition, theories regarding
mental retardation have changed drastically from a medical model to a
developmental model.(108) Approaches to care of the mentally disabled no
longer focus on segregating them, but instead emphasize mainstreaming or
integrating them to the extent possible.(109) Currently, mentally disabled
people are seen to have the same rights to sexual privacy as other
people.(110) The apparent goal of current sterilization law is to prevent
erroneous sterilizations, and to protect the right of the mentally
disabled individual (or a surrogate acting on her behalf) to make
reproductive decisions in her best interests.(111) The argument that
frequently supports statutes to sterilize the mentally handicapped is
based on the best interests of the patient.(112)
There also exists a counter argument to incorporate into
the sterilization statutes an element of the best interests of
society.(113) The competing values are the importance of reproductive
autonomy and a paternalistic protection of the mentally disabled person's
right to procreate.(114) One of the difficult issues is defining whether
the disabled person's fundamental right to privacy includes both the right
to procreate and the right to be sterilized.(115)
When dealing with fundamental rights issues, courts have
generally taken one of four stances.(116) One view is to ask if the
individual's privacy rights would be unfairly restricted if sterilization
were denied.(117) Another line of analysis is to only cursorily analyze
the fundamental rights to privacy and procreative choice.(118) The third
viewpoint is that state interests outweigh fundamental rights and override
equal protection and substantive due process challenges.(119) A final view
is that there is no state interest strong enough to outweigh the invasion
of fundamental rights by involuntary sterilization.(120) This variety of
approaches illustrates the controversy over fundamental privacy rights and
the disabled individual.
B. Statutes
Today involuntary sterilization of the mentally disabled
is supported by statute in some states, and by case law in others.(121)
Presently, ten states have some form of involuntary sterilization
statute.(122) The statutes vary widely in application.(123) For example,
Idaho's sterilization law applies to persons "past his or her age of
puberty,"(124) while Mississippi's law applies to both adults and minors,
but only if they are institutionalized.(125) To add to the array of
results, statutes use various language and definitions when referring to
the mentally disabled.(126) Some states such as North Carolina require
only a probability, rather than proof, that the handicapped person may be
incapable of caring for their children before they can be ordered
sterilized.(127) Other states such as Oregon have more substantive and
procedural requirements in place to protect the rights of the mentally
handicapped person.(128) The Oregon statute requires the following to
establish best interest in the context of sterilization:
a) The individual is physically capable of procreating;
b) The individual is likely to engage in sexual activity
at the present time or in the near future under circumstances likely to
result in pregnancy;
c) All less drastic contraceptive measures, including
supervision, education and training, have proved unworkable or
inapplicable, or are medically counter-indicated;
d) The proposed method of sterilization conforms with
standard medical practice, is the least intrusive method available and
appropriate, and can be carried out without reasonable risk to the health
and life of the individual; and
e) The nature and extent of the individual disability,
as determined by empirical evidence and not solely on the basis of
standardized tests, renders the individual permanently incapable of caring
for and raising a child, even with reasonable assistance.(129)
The Oregon statute exemplifies the objective "best
interest" inquiry,(130) while other statutes use "substituted judgment" in
an attempt to determine what the individual would want if he were able to
make an informed decision.(131)
States place varying levels of importance on factors
such as attempts at other forms of contraception and proof of
fertility.(132) The Oregon statute can be contrasted with Mississippi law
which is essentially the same as the one at issue in the Buck v. Bell
case.(133) The Mississippi statute has been criticized by some as having
explicit eugenic purposes, and infringing on disabled persons' liberty
interests.(134) Depending on the statute, a parent, guardian, physician,
spouse or other interested parties may petition for sterilization of the
disabled person.(135)
C. Case Law
Currently most sterilization issues are raised by the
parents of a mentally disabled daughter, who wish their child to be
sterilized to prevent the psychological, physical and financial toll of
pregnancy and parenthood on their child.(136) Judicial opinions tend to
show deference to the parents of disabled children who request
sterilization.(137) In the absence of statutory authorization,
jurisdictions are split as to whether courts may grant petitions for
sterilization.(138) Washington and Iowa courts have held that a state
constitutional grant of general jurisdiction to the lower courts was
adequate to authorize sterilization of mentally disabled persons.(139)
Other courts have held that they lacked jurisdiction over sterilization
petitions in the absence of specific statutory authorization.(140)
However, after the landmark Supreme Court decision in Stump v.
Sparkman(141) (holding that sterilizations may be authorized absent
express statutory permission) courts have been more likely to grant
jurisdiction.(142) Other courts have based their sterilization
jurisdiction on the common law parens patriae doctrine which provides that
courts have the authority to protect persons who cannot protect themselves
due to a legal disability.(143)
With or without statutory authorization, the courts rely
on several balancing tests developed by sterilization case law.(144) Many
courts follow the two-step process developed in In re Hayes(145) to
determine the appropriateness of sterilization.(146) First, the court must
determine whether the individual is competent to make an informed decision
regarding sterilization.(147) If the court finds the individual
incompetent, then it applies a best interests analysis to determine if
sterilization is appropriate.(148) The Hayes rule is stringent; the court
can order sterilization only if specific criteria are met.(149) A more
flexible rule is the "discretionary best interest" rule which uses a
similar test, but allows a court more discretion in making a
decision.(150) Yet other jurisdictions use the "medically essential"
standard which authorizes sterilization when it is proven that
sterilization is necessary to preserve the life or health of the
incompetent.(151) Courts relying on the "substituted judgment" standard
"consider the Hayes criteria and any other relevant factors in order to
make the decision that the disabled person would make for herself if she
were competent."(152) In addition to these tests, some courts inquire
further into the individual's preference, disability prognosis, likelihood
of sexual activity, and understanding of reproduction.(153)
The numerous tests and factors used to consider
sterilization petitions create substantial hurdles for petitioners as they
tend to create a presumption against sterilization.(154) Although the goal
of some of the standards appears to be to protect the individual's right
to procreate, others appear to protect the individual from parental or
state interference in decision making.(155) Some commentators have
criticized the current models as creating adversarial relationships
between parent and child and disregarding family interests in the
process.(156)
Another criticism of sterilization law is that it
purports to protect the individual's interest in procreation when it is
difficult to determine if that individual even has such an interest.(157)
The conflict surrounding sterilization law is best illustrated by the
dichotomous view of sterilization itself. "On the one hand, sterilization
is authorized as a means of facilitating reproductive choice. On the other
hand, sterilization is characterized as a deprivation of a fundamental
right."(158)
V. MODERN CHINESE EUGENICS POLICY
A. The Maternal and Infant Health Care Law
China's current eugenic laws stem in part from the
controversial Maternal and Infant Health Care Law of 1994 [MIHCL].(159)
This law, formerly known as the Eugenics Law, was originally intended to
promote the health of women and infants, but contains controversial
sterilization provisions.(160) Among other provisions, the law provides
that people with certain hereditary disorders must agree to prevent
childbirth through sterilization or long term contraception, and those
with infectious diseases must delay marriage.(161) In addition, genetic
testing is compulsory during pregnancy, and fetuses with serious disorders
may be aborted.(162) Although according to the law sterilization or
abortion requires the woman's consent,(163) many report that consent is
not required in practice.(164) Other concerns regarding the MIHCL are the
openly admitted goals of population control and improvement by having
fewer and healthier babies.(165) The draft of the law met with so much
international criticism that the Chinese government revised some of the
language, deleting terms such as "eugenics" and "inferior" births.(166)
The law has been denounced by some as proposing Nazi-style eugenics,
despite strong denials by Beijing.(167)
The scientific community's primary concern with the
MIHCL is that it is based on scientifically invalid assumptions.(168)
Scientists no longer presume that mentally disabled people will sire
children with like defects.(169) Numerous genetic defects arise
spontaneously, and there are many birth defects for which there are no
known causes or methods of prevention.(170) Genetic testing can predict
the likelihood of only certain diseases in a fetus,(171) and the birth of
one disabled child does not necessarily indicate the second child will
have a disability.(172) Another disturbing premise on which the Eugenics
Law is arguably based is that defects or disabilities occur at a greater
frequency among minorities and the poor.(173) This belief has concerned
human rights activists, who fear that the law will be used to discriminate
against these groups.(174) These critics feel that this will lead to an
"abuse of private genetic information and a violation of human
rights."(175)
The MIHCL also fails to specify what type of "serious
genetic defect" warrants intervention.(176) The goal of the Eugenic Law is
to prevent the perpetuation of diseases that may keep individuals from
living and functioning independently.(177) Some officials have interpreted
this to include such common defects as harelip and cleft palate.(178)
Because the law will be implemented at local levels, the failure to
explain what constitutes a "serious genetic condition" will most likely
result in wide variations in the interpretation of restrictions.(179)
In addition, some of the specified diseases are curable,
or have been found to have no effect on pregnancy or the fetus.(180) In
1995, there were an estimated ten million "disabled" people cared for by
the Chinese government, many of whom would never have been born had the
law been enacted earlier.(181)
In contrast to its more controversial provisions, the
MIHCL's ban on pre-natal sex determination of fetuses has received
widespread approval.(182) The use of technology to identify the gender of
a fetus is strictly prohibited unless medically necessary.(183) However,
despite its official illegality, the practice of ultrasound sex
determination is rampant in areas where the technology is available.(184)
Chinese culture traditionally views baby boys as more desirable than baby
girls, leading to abortion of female fetuses and girl infanticide.(185)
With the strict enforcement of the One Child Policy, many parents
desperately wish for that one perfect child to be a son.(186) Numerous
reports indicate that in spite of the law, pre-natal sex selection and
abortion of female fetuses are common.(187) Despite its good intentions,
given the extent of these practices, it is doubtful that the MIHCL will
significantly impact pre-natal sex determination.(188)
B. Reform of the Maternal and Infant Health Care Law
After international criticism of provisions of the
MIHCL, Chinese officials announced they were going to clarify the
law.(189) This announcement followed the Eighteenth International Congress
of Genetics convention in Beijing which included discussions of eugenics
and the MIHCL.(190) Scientists at the convention repeatedly criticized the
law, and debated whether it openly condoned forced sterilization, or was
just vague enough to allow that practice.(191) Many were concerned about
the ambiguity surrounding whether the doctor or the couple made the
decision regarding sterilization once a defect was detected.(192) Qiu
Renzong, a professor of bioethics at the Chinese Academy of Social
Sciences and an advisor and critic of the law, stated that this decision
was to be made by the couple.(193) He stated that the principle governing
sterilization was informed consent (presumably similar to the Western
world's idea of consent).(194) Officials claimed they issued an
explanation of the law in August of 1998 that clarified the ambiguous
provisions.(195) All cities and provinces in China were said to have
received a copy of this explanation.(196) The explanation also announced
that China was seeking information to determine which diseases were severe
enough to qualify for sterilization.(197) In essence, this suspended the
provision allowing sterilization, at least until a list of diseases has
been compiled.(198) Additionally, the explanation stated that people with
HIV (which had not developed into AIDS) did not require permission to
marry.(199) According to health officials, it may take several years to
formally revise the law, but the explanation issued "had the force of
law."(200)
C. Related Laws and Policies
Despite this clarification of the MIHCL, many
specialists feel that forced sterilizations will continue in
practice.(201) Provinces and local governments often have regulations that
authorize such sterilization.(202) Provinces such as Shandong, Shanxi,
Jilin, and Gansu all have some type of regulation preventing people with
the potential for producing defective babies from procreating.(203)
Reports indicate that the Gansu law for sterilization of "Idiotic,
Slow-witted, Stupid, and Deranged People" has resulted in about 5,000
people being sterilized in that region.(204) Other reports indicate that
authorities have performed compulsory sterilizations to "improve their
genetic pool" and enforce the China One Child policy.(205) One reason for
the concern that sterilization will continue in spite of clarification of
the law is the effect that Communist Party Directives have over codified
law.(206) "In China, Communist Party directives are equivalent or superior
to legislation and codified laws."(207) Therefore, party directives such
as family planning policy can change or supersede existing law.(208)
Another concern voiced by human rights activists is the
reported incidence of force or coercion to implement the One Child
Policy.(209) Although officials deny sanctioning force to implement
sterilizations or abortions, reports indicate that the practice is
widespread.(210) Numerous reports tell stories of women taken from their
homes in the middle of the night for forced insertion of intrauterine
devices or late term abortions.(211) Population officials are held to
rigid birth quotas and doctors and nurses may be subject to disciplinary
measures for allowing babies from induced abortions to live.(212) Reports
indicate that local officials forcefully detain women for these
procedures, and punish those who resist by inflicting physical injury,
confiscating property, and destroying homes.(213) In addition, coercive
measures to enforce population policy are clearly outlined in provincial
family planning regulations.(214) Widespread penalties for violations of
population policy include severe economic sanctions; disqualification for
health care, housing, and child-care benefits; loss of employment; and
public posting and monitoring of menstrual periods.(215) As a result of
these policies, there is intense pressure by fellow villagers and
officials who are charged with maintaining their quota of births.(216)
Some commentators feel that with this troubled history of enforcement of
the population policy, there is little doubt that similar practices will
continue to be used to enforce the sterilization provisions of the
MIHCL.(217)
Another concern regarding China's eugenic practices was
raised after "[a] survey of 255 geneticists throughout China showed that
they overwhelmingly supported the use of eugenics to improve public
heath."(218) Xin Mao of West China University of Medical Sciences in
Chengdu conducted the survey which indicated that there exists widespread
support of genetic testing for reasons unacceptable to much of the Western
world.(219) Approximately eighty-six percent of those surveyed felt that
the government should mandate premarital testing to identify hereditary
disease,(220) and ninety-one percent thought that couples who were both
carriers of a particular genetic disorder should be prohibited from having
children.(221)
In addition, nearly seventy percent of the scientists
favored genetic testing for susceptibility to diseases such as
alcoholism.(222) Although these beliefs may seem abhorrent in the Western
world, they represent "cultural common sense" in China.(223) Chinese
culture appears to support the idea of promotion of the common good,
rather than individual good, even if it means endorsing eugenic
practices.(224) Mao states that "[t]he core issue is to clean up the gene
pool [and to] reduce the number of deleterious genes."(225) He admits that
these policies promote discrimination among the disabled Chinese.(226)
VI. UNITED STATES GENETIC POLICIES
Genetic research is advancing rapidly in the United
States, especially with the advent of the Human Genome Project.(227) A
primary goal of genetic research and testing is to detect diseases and
develop methods for prevention and treatment.(228) "The potential of
genetic technology to alleviate the physical, emotional, and financial
pain of disease makes this technology extremely attractive."(229) However,
the wide use of genetic testing and gene therapy has been seen by some to
be heading down a dangerous path to social control.(230) Commentators warn
against the evils of widespread genetic testing which may lead to
discrimination and eugenic practices.(231) Critics fear that genetic
testing may be used to deny insurance, to enable employers to accept or
reject certain workers based on their fitness, or to influence educational
decisions.(232) Widespread testing and discrimination could even lead to
the development of a "`genetic underclass' that society marginalizes based
on factors beyond its control."(233)
Other developing genetic technologies with human rights
implications include germ line manipulation.(234) This technology entails
inserting genes into an undeveloped embryo that is fertilized in vitro in
an effort to cure genetic diseases.(235) Analysts fear that this
technology may create a demand for manipulation of other characteristics
such as hair color, intelligence, stature, sexual orientation, and
personality.(236) This type of manipulation could result in "racial"
discrimination by deselecting for certain cosmetic traits such as skin and
eye color and bone structure which are identifiable with a certain
race.(237) Currently, reports indicate that sex selection technology is
available in the United States.(238) The advent of such technologies has
prompted discussions of ethics, morality, and political
responsibility.(239) Some scientists express concern about the eugenic
possibilities of selecting children with cosmetic or performance traits,
or lack of defective traits.(240) Others fear that techniques such as sex
selection will lead to skewing of the sex ratio, and contribute to
discrimination against women and girls.(241) In support of these fears are
isolated reports of aborted fetuses of the "wrong" sex.(242)
While efforts to detect and treat genetic diseases
receive critical acclaim, other aspects of genetic testing and
manipulation have more dubious rewards.(243) As one critic states, "being
short, being of average intelligence, or being homosexual - is [not] a
disease," and therefore needs no prevention.(244) Although none of these
practices are widespread today, commentators stress the possibility that
the newfound knowledge may be used to reintroduce eugenic policies rather
than to benefit individuals.(245)
VII. YIN AND YANG: UNITED STATES V. CHINA
East and West, black and white, yin and yang.... do any
of these analogies accurately describe the eugenic practices of China
versus those of the United States?
On their face, the policies and goals seem vastly
different, but upon closer inspection, some startling similarities appear.
Current U.S. policy regarding eugenic sterilization seems geared to
protect the procreative rights of disabled individuals against outside
interference.(246) There are numerous procedural and substantive
protections to prevent unwarranted sterilizations.(247) In addition,
sterilization law seems to be aimed at protecting the mentally disabled
person's interests, instead of the interests of society.(248) In the
United States when mentally handicapped persons are sterilized, it is
usually at the request of their parents in an effort to protect them from
the travail of procreation.(249) The statutes and case law primarily apply
to incompetent persons, rather than to competent persons with genetic
defects.(250) Although some courts consider whether the person's offspring
will inherit a disability, this has not been a deciding factor in most
cases.(251) Several courts have explicitly rejected any eugenic rationale
for sterilization of the mentally disabled.(252) This approach can be
contrasted with Chinese policy on sterilization which seems rooted in the
true eugenic goal of eliminating defective genes from the population.(253)
Unlike the United States policy, the Chinese policy
contains no checks and balances to protect the rights of the
disabled.(254) Although the government denies it, reports indicate that
practices exist that force sterilization against the will of the
subject.(255) The MIHCL purports to allow couples to make the decision
about their sterilization and contraception, but most commentators believe
couples have no choice.(256) Chinese policy is also more inclusive,
because it targets individuals for sterilization who may be mentally
competent but carry genetic disorders or infectious diseases.(257) In
China, sterilization is generally requested by the physician or by
government officials rather than by the potential parents.(258)
The primary distinguishing feature between Chinese and
American eugenic policy appears to be that China focuses on the interests
of the whole population, while the United States emphasizes the interests
of the individual.(259) While Chinese policy purports to protect the
society from the ill of supporting the disabled individual,(260) American
policy attempts to protect the individual from the ill of society
violating their rights.(261) The United States prides itself in securing
rights for its citizens, and some of these fundamental rights include the
right to privacy and bodily integrity, including decisions relating to
abortion, contraception and sterilization.(262) As this Comment
demonstrates, these rights are neither accorded the same status nor
guarded as vigorously in China as in the United States. These fundamental
rights in the United States result in potential parents having the freedom
to make numerous reproductive decisions. Additionally, the importance we
attach to these freedoms creates a climate where potential parents may
incorporate genetic technology into their reproductive decision making and
family planning.
Is there anything between Yin and Yang? From an initial
analysis, it appears that Chinese eugenic policy is a much greater threat
to human rights than the American policy. However, upon examining American
genetic policy, one may draw the conclusion that America implicitly
endorses eugenics. This conclusion may be drawn depending on how broadly
eugenics is defined. Geneticists, in an attempt to disassociate their
science from odious practices, may define eugenics as having "a social aim
and often coercive means."(263) If this definition is used, many
eugenicists who endorse voluntary or positive eugenics would be excluded
from the definition.(264) Modern commentators believe that a resurgence of
eugenics is occurring without the element of coercion, but rather as a
result of voluntary choices.(265) Parents who select for certain cosmetic
or performance traits in their children are practicing positive eugenics,
whether knowingly or unknowingly. Similarly, those who elect not to have
children with certain disabilities may be implementing a form of negative
eugenics.
Although genetic testing and reproductive decisions in
the United States are voluntary, the current permissive attitudes toward
the use of genetics in reproductive decisions may lead toward the use of
genetics for eugenic practices. Testing which discovers genetic defects
and leads to negative eugenic decisions may be seen as discriminatory
toward people with such defects. Similarly, the use of genetic testing to
select for cosmetic traits may result in discrimination against certain
races or ethnic groups. Although not intended to have a eugenic purpose,
these types of voluntary decisions pose threats to the human rights that
Americans value dearly. As Americans become more comfortable with the idea
of determining characteristics such as sex, the implicit eugenic policy
becomes more dangerous. While American policies seem safe because of their
voluntary nature, they may actually pose an equal risk to human rights as
genetic discrimination becomes socially acceptable.
VIII. CONCLUSION
The twentieth century has witnessed the rise and fall of
the eugenic movement in both the East and the West. Currently eugenic
policy is in disfavor in many countries, though still strong in China. The
United States has numerous safeguards to protect the disabled from eugenic
elimination. However, the United States also has policies that permit
eugenic decisions on a voluntary basis. With genetic and reproductive
technology rapidly outpacing ethical and legal developments, our society
may be facing the rise of social eugenic policies once again. In order to
combat this occurrence, it is vital for scientists, human rights
activists, and scholars to engage in open dialogue about eugenic policies.
Now is the time to address genetic and eugenic issues
and formulate policies and laws to protect society.
"If in the First Act you hang a gun upon the wall, by
the Third Act you must use it." The gun is on the wall. Now is the time to
determine when, how and against whom it will be used.
(1.) See Diane B. Paul, Is Human Genetics Disguised
Eugenics?, in GENES AND HUMAN SELF-KNOWLEDGE 67, 72 (Robert F. Weir et al.
eds., 1994).
(2.) See Richard A. Estacio, Comment, Sterilization of
the Mentally Disabled in Pennsylvania: Three Generations Without
Legislative Guidance Are Enough, 92 DICK. L. REV. 409, 411 (1988); PLATO,
THE REPUBLIC, 149-53 (Richard W. Sterling & William C. Scott trans., W.W.
Norton & Co. 1985).
(3.) See Estacio, supra note 2, at 411.
(4.) FRANCIS GALTON, INQUIRIES INTO HUMAN FACULTY AND
ITS DEVELOPMENT 17 n.1 (AMS Press 1973) (1907).
(5.) Paul, supra note 1, at 68 (quoting Bertrand
Russell).
(6.) See id. (discussing the implications of using
intent or effects to define eugenics).
(7.) Id. at 69.
(8.) See Estacio, supra note 2, at 411.
(9.) See Paul, supra note 1, at 70.
(10.) See Estacio, supra note 2, at 411.
(11.) See TROY DUSTER, BACKDOOR TO EUGENICS 112 (1990).
(12.) See Philip R. Reilly, Eugenic Sterilization in the
United States, in GENETICS AND THE LAW III 227, 236 (Aubrey Milunsky &
George J. Annas eds., 1985).
(13.) See Eric M. Jaegers, Note, Modern Judicial
Treatment of Procreative Rights of Developmentally Disabled Persons: Equal
Rights to Procreation and Sterilization, 31 U. LOUISVILLE J. FAM. L. 947,
950 (1993) (tracing the development of sterilization laws).
(14.) See id.
(15.) See Paul, supra note 1, at 67. "Fear of a Eugenics
Revival appears to be a principle anxiety aroused by the Human Genome
Project." Id.
(16.) See id. at 69-70 (citing the element of coercion
as a major distinguishing factor between genetics and eugenics).
(17.) ISAIAH BERLIN, Two Concepts of Liberty (1958),
reprinted in FOUR ESSAYS ON LIBERTY 118, 121 (1969); see also Paul, supra
note 1, at 70 (quoting Berlin).
(18.) See Paul, supra note 1, at 68. "Prenatal diagnosis
presupposes that certain fetal conditions are extrinsically not bearable."
Id.
(19.) See id.
(20.) See id.
(21.) See id. at 69 (contemplating whether it is
possible to know the motives behind any policy).
(22.) See Robert J. Cynkar, Buck v. Bell: "Felt
Necessities" v. Fundamental Values?, 81 COLUM. L. REV. 1418, 1420 (1981).
(23.) See id.
(24.) See id. at 1420 n.4 (citing several prominent
social theorists of the time).
(25.) See id. at 1420. Galton also performed
statisitical analysis on eighty sets of twins. See id.
(26.) See id. (explaining Galton's belief that society
"could use his principles to produce `men of ability' through planned
breeding").
(27.) See id. at 1422.
(28.) See Estacio, supra note 2, at 412.
(29.) See Cynkar, supra note 22, at 1422. One researcher
of the time came to the following conclusion:
[W]ithin one racial group, the correlations between the
divergences of an individual from the average in different desirable
traits are positive, that the man who is above the average of his race in
intelligence is above rather than below it in decency, sanity, even in
bodily health.... The child of good reasoning powers has better, not
worse, memory than the average; the child superior in observation is
superior in inference; scholarship is prophetic of success out of school;
a good mind means a better than average character.
Id.
(30.) See Jaegers, supra note 13, at 951 (describing
lobbying efforts of eugenicists).
(31.) See Cynkar, supra note 22, at 1423-25 (describing
how the economic conditions in the United States in the late 19th century
and the misunderstanding of mental illness during that time period
combined to strengthen the eugenics movement in the United States). For an
example of the prevailing climate, see the comments made by Dr. Walter E.
Fernald before the Massachusetts Medical Society in 1912:
The past few years have witnessed a striking awakening
of professional and popular consciousness of the widespread prevalence of
feeblemindedness.... and as a causative factor in the production of crime,
prostitution, pauperism, illegitimacy, intemperance and other complex
social diseases.... The feebleminded are a parasitic, predatory class,
never capable of self-support or of managing their own affairs....
Feebleminded women are almost invariably immoral and if at large usually
become carriers of venereal disease or give birth to children who are as
defective as themselves.... Every feebleminded person, especially the
high-grade imbecile, is a potential criminal....
STANLEY POWELL DAVIES, SOCIAL CONTROL OF THE MENTALLY
DEFICIENT 92 (Gerald N. Grob et al. eds., 1976).
(32.) See Cynkar, supra note 22, at 1423 (describing the
view that an "individual's social adequacy is soley a function of his
mental endowment").
(33.) See id. at 1423-24; see also Reilly, supra note
12, at 228 (discussing "the Jukes"). The report on the Jukes was written
by a prison inspector who described the traits of 709 descendents of a
particular Dutch settler, many of whom were prisoners, and all of whom
supposedly had a penchant for taverns, brothels, and other social ills.
The story of the Jukes was widely accepted by the general public, and
furthered the interest in calculating the cost of these defectives to
society. Another "experiment" involved a Revolutionary War soldier who
impregnated a girl who was thought to be low class. He later married a
"respectable" Quaker woman and bred a line of eminent citizens, while the
illegitimate side of the family were feebleminded paupers. See id. at 229.
(34.) Cynkar, supra note 22, at 1432 (citing Act of July
4, 1895, 1895 Conn. Pub. Acts ch. 325).
(35.) See id. at 1432-33 (discussing a systematic
program of sterilization implemented at the Kansas State Home for the
Feebleminded).
(36.) See id. at 1433 (citing Act of March 9, 1907, 1907
Ind. Acts ch. 215) (noting that the campaign for sterilization of the
feebleminded in Indiana was led by a physician who was experimenting with
the newly developed vasectomy, and that prior to passage of the law, he
had sterilized 176 inmates in a reformatory); see also Jaegers, supra note
13, at 950-51 (discussing the use of vasectomy, castration, and
salpingectomy for eugenic purposes). Vasectomy is partial or complete
removal of the vas deferens; castration is the removal of the ovaries or
testicles; and a salpingectomy is the removal of the fallopian tube. See
AMERICAN HERITAGE DICTIONARY 299, 1593, 1977 (3d ed. 1992).
(37.) See Reilly, supra note 12, at 231. A similar
situation to that of Indiana existed in California in 1909. A physician
and lobbyist named F.W. Hatch helped to draft a sterilization law, helped
to convince the legislature to adopt it, and after the law was enacted,
was appointed General Superintendent of State Hospitals and was thus
authorized to implement the new law. The California law focused on the
insane and provided for consent by the insane person's family; however, as
sterilization was a prerequisite for release from the institutions, few
withheld consent. See id. at 231-32.
(38.) See Cynkar, supra note 22, at 1433.
(39.) See Reilly, supra note 12, at 231.
(40.) See Jaegers, supra note 13, at 952.
(41.) See Haynes v. Lapeer, 166 N.W. 938 (Mich. 1918)
(holding a Michigan law providing for sterilization of institutionalized
`mentally defective' persons unconstitutional and void as class
legislation). The court reasoned that the enactment selected out of a
"natural class of defective and incompetent persons only those already
under public restraint, leaving immune from its operation all others of
like kind to whom the reason for the legislative remedy is normally and
equally, at least, applicable, extending immunities and privileges to the
latter which are denied to the former." Id. at 940. See also Smith v.
Board of Examiners, 88 A. 963 (N.J. Sup. Ct. 1913) (holding a New Jersey
law providing for sterilization of epileptics in public institutions
unconstitutional because the statutory remedy denied institutionalized
epileptics equal protection); Jaegers, supra note 13, at 952.
(42.) See State ex Rel. v. Schaffer, 270 P. 604, 605
(Kan. 1928) (upholding a statute authorizing the sterilization of hospital
inmates): "Procreation of defective and feeble-minded children with
criminal tendencies does not advantage, but patently disadvantages, the
race. The race may insure its own perpetuation and such progeny may be
prevented in the interest of the higher general welfare." Id.
(43.) 274 U.S. 200 (1927).
(44.) See id. at 200; see also Jaegers, supra note 13,
at 947. The Act declared:
[T]he Commonwealth ... is supporting ... many defective
persons who if now discharged or paroled would likely become by the
propagation of their kind a menace to society but who if incapable of
procreating might properly and safely be discharged or paroled and become
self-supporting.... [H]uman experience has demonstrated that heredity
plays an important part in the transmission of insanity, idiocy,
imbecility, epilepsy and crime....
Cynkar, supra note 22, at 1436. The Virginia law
contained much of the same language as the laws Hitler used to sterilize
the defective in Germany, as both were based on the Model Eugenical
Sterilization Law proposed by an American eugenicist. See Paul A.
Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60
N.Y.U.L. REV. 30, 31 & n.6 (1985) (citing A. CHASE, THE LEGACY OF MALTHUS:
THE SOCIAL COSTS OF THE NEW SCIENTIFIC RACISM 135, 351 n.15 (1977)).
(45.) See Buck, 274 U.S. at 206; see also Jaegers, supra
note 13, at 953.
(46.) See Buck, 274 U.S. at 205.
(47.) See id.; Cynkar, supra note 22, at 1437.
(48.) Buck, 274 U.S. at 207.
(49.) See Jaegers, supra note 13, at 953; see also
Estacio, supra note 2, at 415-16 (commenting on how Justice Holmes quickly
and erroneously assumed that heredity is the primary cause of mental
retardation); ALBERT DEUTSCH, THE MENTALLY ILL IN AMERICA 365-67 (2d ed.
1949) (discussing the post-Buck research and developments, and indicating
that many of the so-called hereditary mental defects provided for in the
sterilization statutes were in fact not inherited). It is interesting to
note that several historians and commentators offer proof that Buck was a
test case specifically designed to bolster the sterilization campaign. See
Cynkar, supra note 22, at 1437; see also Lombardo, supra note 44, at 51-54
(offering evidence that none of the three Buck generations were actually
"imbeciles," but rather were considered social defectives because they
mothered illegitimate children and that Carrie became a mother as a result
of rape).
(50.) See Cynkar, supra note 22, at 1454; Jaegers, supra
note 13, at 953-54. The initial sterilization statutes were aimed at
institutionalized persons, and prior to 1930, roughly half of those
sterilized were men. In 1930, the number of women sterilized began to rise
dramatically. See Reilly, supra note 12, at 235-36.
(51.) See Cynkar, supra note 22, at 1454 (noticing that
despite the Buck decision, and the increased number of sterilizations in
Virginia, the nationwide use of sterilization was declining).
(52.) See id. (commenting that by the time of the Buck
decision, eugenic scientists had become increasingly aware of the
simplistic nature of their assumptions, and had begun to withdraw their
support from the eugenics movement).
(53.) See id. at 1456. Despite strong, support for
eugenic sterilization in the medical community, only eighteen state
medical associations officially supported the eugenic position. See
Reilly, supra note 12, at 235. In 1937, the American Medical Association
stated, "Present knowledge regarding human heredity is so limited that
there appears to be very little scientific basis to justify limitation of
conception for eugenic reasons.... There is conflicting evidence regarding
the transmissibility of epilepsy and mental disorders." Charles P.
Kindregan, Sixty Years of Compulsory Eugenic Sterilization: "Three
Generations of Imbeciles" and the Constitution of the United States, 43
CHI. KENT L. REV. 123, 136-37 (1966) (internal quotations omitted).
(54.) See Cynkar, supra note 22, at 1456. Although word
of the German campaign horrified many Americans, nearly haft of the
involuntary sterilizations in the United States occurred after Hitler's
campaign was in full swing. See Reilly, supra note 12, at 935.
(55.) 316 U.S. 535 (1942); see Jaegers, supra note 13,
at 958 (arguing that Skinner established procreation as a fundamental
right, and sparked a debate regarding sterilization of mentally disabled
persons).
(56.) See Skinner, 316 U.S. at 536-39 (invalidating an
Oklahoma statute that provided for involuntary sterilization of
individuals convicted of more than two felonies). The Supreme Court
invalidated the statute in part on equal protection grounds. They reasoned
that the crimes Skinner committed, stealing chickens and armed robbery,
were essentially the same as embezzlement which was excluded from the
statute. See id.; see also Jaegers, supra note 13, at 957-58 (commenting
that states seeking to enforce compulsory sterilization statutes must show
a compelling state interest and the unavailability of less intrusive means
of accomplishing the same goal).
(57.) Skinner, 316 U.S. at 541.
(58.) 318 U.S. 479 (1965).
(59.) See id. at 485-86 (holding that married couples
had a right to privacy that included non-interference with contraception);
see also Jaegers, supra note 13, at 958 (commenting that the Supreme Court
began formulating the modern doctrine of reproductive privacy in
Griswold). This right was later expanded to include unmarried couples. See
Eisenstadt v. Baird, 405 U.S. 438, 454-55 (1972) (holding that prohibiting
only unmarried persons access to contraceptives violated Equal
Protection).
(60.) 410 U.S. 113 (1973).
(61.) See id. at 154.
(62.) See Jaegers, supra note 13, at 959.
(63.) See In re Valerie N., 707 P.2d 760 (Cal. 1985). In
this case, the California Supreme Court held that it was unable to permit
the sterilization of a severely retarded woman, even at the request of her
parents, because the statute didn't allow sterilization of non-consenting
persons. See id. at 761-62.
(64.) See Xiaorong Li, License to Coerce: Violence
Against Women, State Responsibility, and Legal Failures in China's
Family-Planning Program, 8 YALE J.L. & FEMINISM 145, 148-55 (outlining
China's population policy and its ramifications).
(65.) See Reed Boland, The Environment, Population, and
Women's Human Rights, 27 ENVTL. L. 1137, 1143 (1997) [hereinafter Women's
Rights] (commenting that after 1949, the new Communist regime aggressively
pursued a policy of encouraging births).
(66.) See id. (explaining that the Communist government
implemented the policy to strengthen the country through increased
socioeconomic development). The Communist Party Chairman, Mao Zedong,
instituted a policy with the slogan "the more babies, the more glorious
are their mothers." Li, supra note 64, at 148.
(67.) See Li, supra note 64, at 148. The new slogan in
the 1970s was "Later, farther apart, and fewer." Id.
(68.) See id. His plan emphasized economic efficiency
and the importance of halting the population explosion. See id.
(69.) See id.
(70.) See Women's Rights, supra note 65, at 1143. China
has approximately a fifth of the world's people but less than a tenth of
the world's farmable land. See Graciela Gomez, China's Eugenics Law as
Grounds for Granting Asylum, 5 PAC. RIM L. & POL'Y J. 563, 565 (1996).
(71.) Gomez, supra note 70, at 565.
(72.) See id. (noting that the Chinese Constitution
gives the individual states power to carry out family planning in order to
achieve the goal of population control). "The Central Party Committee and
the State Council announced that `controlling population growth is an
important strategic issue facing our country's modern socialist
construction.'" Li, supra note 64, at 149.
(73.) See Li, supra note 65, at 149.
(74.) See Gomez, supra note 70, at 566.
(75.) See Li, supra note 65, at 152-155 (discussing in
detail the `one-birth' policy that generally requires couples to obtain
birth permits prior to conception, punishes couples who have more than one
child by forcing the woman to terminate the pregnancy, and forces couples
to use contraceptives if they already have one child).
(76.) See Women's Rights, supra note 65, at 1144.
(77.) See id.
(78.) See Li, supra note 654, at 149-50.
(79.) See Gomez, supra note 70, at 568-69; Reed Boland,
Cairo Conference and Programme of Action: An Innovative Approach to
Population Policy or Old Wine in a New Bottle?, 1995 ST. LOUIS-WARSAW
TRANSATLANTIC L.J. 23, 31 (1995); Women's Rights, supra note 65, at 1144
(discussing reports of mass sterilization campaigns in the provinces).
(80.) See Women's Rights, supra note 65, at 1145-46. At
times the whole community is involved in pressuring women into
sterilization, abortion, or insertion of an IUD. In some areas officials
actually monitor the women's use of contraceptives and whether they become
pregnant. See id. at 1146. The government may also withhold medical,
educational or housing benefits, or impose stiff fines for non-compliance.
See Reed Boland, Civil & Political Rights and the Right to
Nondiscrimination Population Policies, Human Rights, and Legal Change, 44
AM. U. L. REV. 1257, 1261 (1995). In contrast, those couples who comply
with the one child policy may be rewarded with better benefits. See
Women's Rights, supra note 65, at 1145.
(81.) See Timothy John Fitzgibbon, The United Nations
Convention on the Rights of the Child: Are Children Really Protected? A
Case Study of China's Implementation, 20 LOY. L.A. INT'L & COMP. L. J.
325, 344 (1998).
(82.) See Women's Rights, supra note 65, at 1151 (noting
that provinces have enacted laws requiring sterilization of individuals
with hereditary diseases or mental or physical disabilities).
(83.) See Li, supra note 64, at 160.
(84.) See id. at 161.
(85.) Id. (internal quotations omitted).
(86.) See Women's Rights, supra note 65, at 1151.
(87.) Li, supra note 64, at 161 (citing Shadong Family
Planning Regulations art. 17 (adopted by the Standing Committee of the
Seventh Shandong People's Congress, July 20, 1988)).
(88.) Id. at 161 (citing Shanxi Family Planning
Regulations art. 13 (adopted by the Standing Committee of the Seventh
Shanxi People's Congress, Sept. 22, 1989)).
(89.) See id. at 161 n.87.
(90.) See id. at 162.
(91.) See id. at 169 (discussing the common practice of
aborting female fetuses).
(92.) See id. at 166 & n.114 (citing Li Yongping, Infant
Sex Ratio and Its Relationship With Socio-economic Variables: Results of
Population Census and The Reflected Realities, 4 POPULATION & ECON. 3
1993); Mu Guangzong, A Theoretical Explanation of Recent Rise in Sex
Ration at Birth in China, 1 POPULATION & ECON. 50 (1995) (describing
China's sex ratio).
(93.) See Uli Schmetzer, In Controlling China's
Population, Girls `Disappear,' CHI. TRIB., Apr. 27, 1993, [sections] 1, at
1. [hereinafter Girls Disappear. Some sources claim the ratio is even more
skewed, and that as many as 750,000 females born in China each year are
missing. See id. Calculations from as far back as 1986 indicate over half
a million female births unaccounted for each year. See Terence H. Hull,
Recent Trends in Sex Ratios of Birth in China, 16 POPULATION & DEV. REV.
63, 67 (1990).
(94.) See Girls Disappear, supra note 93 (comparing
worldwide sex ratios to China's pre-One Child Policy sex ratio).
(95.) See id. (discussing China's preference for male
offspring); see also Nicholas D. Kristof, China's Crackdown on Births: A
Stunning and Harsh Success, N.Y. TIMES, Apr. 25, 1993, at A1 (describing
the emphasis Chinese peasants place on bearing male offspring).
(96.) See Li, supra note 64, at 169 (describing largely
ineffective provincial regulations and legislation prohibiting sex
identification); see also Kristof, supra note 95 (discussing the growing
use of ultrasound technology for sex identification). Although the Chinese
government denies fetal preference, in the 1980s, they created exceptions
to the One Child Policy by allowing rural couples whose only child was
female to have a second male child. See Women's Rights, supra note 65, at
1150.
(97.) See Li, supra note 65, at 166-67 & n.117
(explaining various techniques for concealing the birth of female babies).
(98.) See id. at 167 (discussing ineffectiveness of laws
aimed at protecting female infants).
(99.) See id. at 167 & n.121.
(100.) See id. at 162 (citing Ruth Youngblood, China Law
Defers Disabled Marriages, UPI, Oct. 27, 1994).
(101.) See Gomez, supra note 70, at 569.
(102.) See James C. Dugan, The Conflict Between
"Disabling" and "Enabling" Paradigms in Law: Sterilization, the
Developmentally Disabled, and the Americans with Disabilities Act of 1990,
78 CORNELL L. REV. 507, 517-20 (discussing the shift from a predominantly
disabling paradigm, permitting involuntary sterilization, to the current,
less severe, enabling paradigm).
(103.) See id. at 520-21 (comparing enabling
sterilization statutes which maximize the disabled person's ability to
choose, with disabling sterilization statutes which minimize the disabled
person's ability to choose).
(104.) Elizabeth S. Scott, Sterilization of Mentally
Retarded Persons: Reproductive Rights and Family Privacy, 1986 DUKE L.J.
806, 809 (1986).
(105.) See id. at 811-12 (describing reform law
rejecting eugenics to protect individual liberties).
(106.) See id. at 811.
(107.) See, e.g., Griswold v. Connecticut, 381 U.S. 479,
485 (1965) (striking down as unconstitutional a law prohibiting married
couples access to birth control on the grounds that it interfered with
marital privacy). Several related decisions further broadened women's
rights to contraception, abortion, and fertility. See, e.g., Thornburgh v.
American College of Obstetricians & Gynecologists, 476 U.S. 747, 772
(1986) (holding that women have a constitutionally protected right to an
abortion); Carey v. Population Servs. Int'l, 431 U.S. 678, 694 (1977)
(holding a law prohibiting the sale of contraceptives to minors restricts
their reproductive privacy); Roe v. Wade, 410 U.S. 113, 164 (1973)
(holding that women have a privacy right to abortion during the first
trimester); Eisenstadt v. Baird, 405 U.S. 438, 443 (1972) (holding that
prohibiting single persons from using contraceptives violates the Equal
Protection Clause of the Fourteenth Amendment). See also Robert Randal
Adler, Note, Estate of C. W.: A Pragmatic Approach to the Involuntary
Sterilization of the Mentally Disabled, 20 NOVA L. REV. 1323, 1347-48
(discussing the development of the fundamental right to sexuality and
privacy).
(108.) See Scott, supra note 104, at 814 (elaborating on
the changing conception of mental retardation).
(109.) See id. at 815 (discussing current trend to
integrate mentally retarded persons).
(110.) See id. at 813.
(111.) See id. at 807.
(112.) See Estacio, supra note 2, at 420.
(113.) See id. This concern for the best interests of
society is based on the presumption that some, if not all, mentally
handicapped persons are unable to become fit parents. See id. at 421.
Further arguments are put forward regarding the costs to society of
supporting and raising the children, and any risks to the children from
being in the custody of an incapable parent. See id.
(114.) See Scott, supra note 104, at 807 (contrasting a
purported emphasis on reproductive autonomy with a more apparent interest
in paternalism with regard to the reproductive choices of the mentally
disabled).
(115.) See Roberta Cepko, Involuntary Sterilization of
Mentally Disabled Women, 8 BERKELEY WOMEN'S L.J. 122, 131-33 (1993). See,
e.g., In re Grady, 426 A.2d 467 at 474 (1981). "The right to be sterilized
comes within the privacy rights protected from undue governmental
interference." Id.
(116.) See Cepko, supra note 115, at 130-31.
(117.) See id. See, e.g., In re Valerie N., 707 P.2d 760
(Cal. 1985); In re Moe, 432 N.E.2d 712, 717 (Mass. 1982).
(118.) See Cepko, supra note 115, at 130-31. See, e.g.,
In re Hayes, 608 P.2d 635, 639 (Wash. 1980); C.D.M. v. State, 627 P.2d
607, 612 (Alaska 1981).
(119.) See Cepko, supra note 115, at 130-31. See, e.g.,
In re Moore, 221 S.E.2d 307, 308-09 (N.C. 1976).
(120.) See Cepko, supra note 115, at 130-31. See, e.g.,
In re Eberhardy, 307 N.W.2d 881 (Wis. 1981).
(121.) See Cepko, supra note 115, at 146-58 (analyzing
statutory and common law policies).
(122.) See ARK. CODE ANN. [subsections] 20-49-205 to
-304 (Michie 1997); DEL. CODE ANN. tit. 16, [subsections] 5701-16 (1995);
GA. CODE ANN. [subsections] 31-20-2 to -3 (1996); IDAHO CODE [subsections]
39-3901 to -3909 (1999); MISS. CODE ANN. [subsections] 41-45-1 to -19
(1998); N.C. GEN. STAT. [subsections] 35-39 to -43 (1997); OR. REV. STAT.
[subsections] 436.225 to .295 (1998); UTAH CODE ANN. [subsections]
62A-6-101 to -116 (1998); VT. STAT. ANN. tit. 18, [subsections] 8705-12
(1998); VA. CODE ANN. [subsections] 54.1-2975 to -2977 (Michie 1998).
(123.) See Cepko, supra note 115, at 146 (stating the
various state approaches to statute applicability).
(124.) IDAHO CODE [sections] 39-3901(a) (1999).
(125.) See MISS. CODE ANN. [sections] 41-45-5 (1998).
(126.) See Cepko, supra note 115, at 146 (examining the
various ways statutes define mental disability). In addition, some
statutes require certain safeguards when an individual is incapable of
giving informed consent. See OR. REV. STAT. [sections] 436.215 (1998).
(127.) See Estacio, supra note 2, at 421. The North
Carolina statute leaves the determination whether the handicapped person
would be able to care for children solely to the petitioner, and has no
guidelines regarding the handicapped person's best interests. See N.C.
GEN. STAT. [sections] 35-39(3) (1997). It should be noted that North
Carolina was one of the last and most vigorous enforcers of the previous
compulsory eugenic sterilization laws, and performed these well into the
1960s after most of these laws had fallen into disfavor with the general
American public. See Reilly, supra note 12, at 237.
(128.) See OR. REV. STAT. [sections] 436.215 (1998); See
also Estacio, supra note 2, at 422.
(129.) OR. REV. STAT. [sections] 436.205(1) (1998).
(130.) See OR. REV. STAT. [sections] 436.295 (1998).
(131.) See UTAH CODE ANN. [sections] 62A-6-108(4) (1997)
(setting forth the substituted judgment scheme); Cepko, supra note 115, at
154.
(132.) See Cepko, supra note 115, at 153. See also,
e.g., UTAH CODE ANN. [sections] 62A-6-108(1)(c) (1997) (providing for a
rebuttable presumption of fertility in physically normal individuals); VA.
CODE ANN. [sections] 54.1-2977.2 (Michie 1998) (requiring proof that there
is no reasonable alternative method of contraception).
(133.) 274 U.S. 200 (1927); See Dugan, supra note 102,
at 527 (discussing the language and the controlling interests in the
Mississippi statute). The Mississippi statute allows involuntary
sterilization of persons "afflicted with hereditary forms of insanity that
are recurrent, idiocy, imbecility, or feeblemindedness." MISS. CODE ANN.
[sections] 41-45-1 (1998).
(134.) See Dugan, supra note 102, at 527.
(135.) See Cepko, supra note 115, at 149; GA. CODE ANN.
[sections] 31-20-3(c)(1) (Supp. I 1998) (1996) (guardian or next of kin);
ARK. CODE ANN. [sections] 20-49-202(a) (Michie 1997) (parent or guardian);
OHIO REV. CODE ANN. [sections] 5123.86(c) (Anderson 1998) (natural or
court appointed guardian or two doctors if neither is available); Va. CODE
ANN. [sections] 54.1-2975 (Michie 1998) (spouses); CONN. GEN. STAT.
[sections] 45a-692 (West 1993) (interested parties).
(136.) See e.g., In re S.C.E., 378 A.2d 144, 145 (Del.
Ch. 1977) (denying parents' petition to sterilize severely mentally
retarded girl who required nearly total physical care); Estate of C.W.,
640 A.2d 427, 430-31 (Pa. Super. Ct. 1994) (granting guardian's petition
to sterilize moderately severely mentally retarded daughter who had
multiple medical problems, and was overly affectionate); In re Grady, 426
A.2d 467, 470 (N.J. 1981) (denying parents' petition to sterilize daughter
with Down's Syndrome because they failed to meet a clear and convincing
standard of proof); In re Valerie N., 219 Cal. Rptr. 387, 389-90 (Cal.
1985) (denying conservator's application to sterilize mentally retarded
daughter who exhibited inappropriate sexual behavior towards men that was
not corrected with behavior modification).
(137.) See Cepko, supra note 115, at 149. See In re
Grady, 426 A.2d 467. "Parents decided not to place her in an institution
but to care for her at home. Since that time they have provided her with
love and emotional support, as well as the physical necessities of life."
Id. at 469-70. See also In re Hayes, 608 P.2d 635. "Edith's parents are
sensitive to her special needs and concerned about her physical and
emotional health. During the year or so that Edith has been capable of
becoming pregnant, [her parents] have become frustrated, depressed and
emotionally drained by the stress of seeking an effective and safe method
of contraception." Id. at 637. Although deferential to parents, courts
have not entirely disregarded the interests of disabled children. "A court
must take particular care to protect the rights of the mentally impaired
when considering the prospect of sterilization." In re Grady, 426 A.2d at
472. See also In re Hayes, 608 P.2d at 640 (commenting on the "detrimental
emotional effects" that mentally disabled persons may suffer as a result
of sterilization, and recognizing that the interests of the retarded
person are not always coterminous with the interests of the parent).
(138.) See Cepko, supra note 115, at 156.
(139.) See In re Hayes, 608 P.2d 635, 638 (Wash. 1980);
In re Matejski, 419 N.W.2d 576, 580 (Iowa 1988).
(140.) See, e.g., Frazier v. Levi, 440 S.W.2d 393, 395
(Tex. Civ. App.--Houston [1st Dist.] 1969); In re M.K.R., 515 S.W.2d 467,
470-71 (Mo. 1974); In re D.D., 408 N.Y.S.2d 105 (N.Y. App. Div. 1978); In
re S.C.E., 378 A.2d 144, 145-46 (Del. Ch. 1977); Hudson v. Hudson, 373 So.
2d 310, 312 (Ala. 1979).
(141.) 435 U.S. 349 (1978).
(142.) See Susan Stefan, Whose Egg Is It Anyway?
Reproductive Rights of Incarcerated, Institutionalized and Incompetent
Women, 13 NOVA L. REV. 405, 418-19 (1989) (comparing the treatment of
sterilization petitions before and after the Stump decision). The specific
issue in Stump was whether a judge had judicial immunity from granting
sterilization absent the statutory authorization. See Stump, 435 U.S. at
358. Although the Court focused on the judicial immunity issue rather than
the validity of court ordered sterilizations, this decision has been cited
repeatedly as support for sterilization decisions. See Cepko, supra note
115, at 157-58.
(143.) See, e.g., In re Terwilliger, 450 A.2d 1376,
1381-82 (Pa. Super. Ct. 1982); see also Estacio, supra note 2, at 425.
(144.) See Jaegers, supra note 13, at 961-63 (discussing
the procedural requirements imposed by various jurisdictions).
(145.) 608 P.2d 635 (Wash. 1980).
(146.) See id. at 961.
(147.) See In re Hayes, 608 P.2d 635, 641 (Wash. 1980).
"[T]he judge must first find by clear, cogent and convincing evidence that
the individual is (1) incapable of making his or her own decision about
sterilization, and (2) unlikely to develop sufficiently to make an
informed judgment about sterilization in the foreseeable future." Id.
(148.) See Scott, supra note 104, at 818.
(149.) See Hayes, 608 P.2d at 641:
The judge must find that the individual is (1)
physically capable of procreation, and (2) likely to engage in sexual
activity at the present or in the near future under circumstances likely
to result in pregnancy, and must find in addition that (3) the nature and
extent of the individual's disability, as determined by empirical evidence
and not solely on the basis of standardized tests, renders him or her
permanently incapable of caring for a child, even with reasonable
assistance.
Id. at 641 (emphasis added).
(150.) See Scott, supra note 104, at 822. See, e.g,. In
re Penny N., 414 A.2d 541, 543 (N.H. 1980); In re Terwilliger, 450 A.2d
1376, 1382 (Pa. Super. Ct.1982).
(151.) See In re A.W., 637 P.2d 366, 375-76 (Colo. 1981)
(holding that expert testimony must be used to prove medical necessity,
and that the court must make this finding by using the clear and
convincing evidentiary standard).
(152.) Scott, supra note 104, at 823.
(153.) See id. at 820-21.
(154.) See Jaegers, supra note 13, at 965; Scott, supra
note 104, at 824.
(155.) See Scott, supra note 104, at 823-24.
(156.) See id. at 825 (acknowledging the burden a
severely disabled individual can put on their family and addressing the
latter's interest in sterilization).
(157.) See id.
(158.) Id. at 824 n.58.
(159.) Law on Maternal, Infant Health Care (Oct. 27,
1994), Beijing XINHUA Domestic Service, available in Foreign Broadcast
Information Service-Daily Report-China-94-211, Nov. 1, 1994, at 29
[hereinafter MIHCL] (on file with the Houston Journal of International
Law). See Li, supra note 64, at 160-61.
(160.) See MIHCL, supra note 159.
(161.) See MIHCL supra note 159, ch. II, arts. 9 & 10;
Li supra note 64, at 161-62; Gomez, supra note 70, at 571.
(162.) See MIHCL, supra note 159, ch. III; Gomez, supra
note 70, at 571.
(163.) See MIHCL, supra note 159, ch. III, art. 19.
(164.) See Li, supra note 64, at 162. One interpretation
says women will be `advised' to terminate pregnancies. China's Repellent
Eugenics Policy, CHI. TRIB., Jan. 18, 1995, at 12. Doctors have the power
to virtually veto the birth of a child based on genetics, and though
parents may appeal, courts rarely overturn the doctor's decision. Uli
Schmetzer, China Lays Down the Law Over Who Gives Birth, Who Doesn't, CHI.
TRIB., Jan. 17, 1995, at 10.
(165.) See MIHCL, supra note 159, ch. I; Gomez, supra
note 70, at 569. The law seeks to improve the quality of the newborn
population, and prevent any relaxation of the One Child Policy. See id.
(166.) See Chinese Minister Defends New Eugenics Law,
AGENCE FR. PRESSE, June 1, 1995, available in 1995 WL 7810735.
(167.) See Retired Doctor Lands in Jail for Identifying
Sex of Fetuses, AGENCE FR. PRESSE, Sept. 19, 1995, available in 1995 WL
7858358; David Wallen, UK Scientists See Defects in Genetics Law, S. CHINA
MORNING POST, June 6, 1995, at 8, available in 1995 WL 7528908 (discussing
British geneticist's claim that the law is an "undisguised embodiment of
eugenic principles, the implementation of which has had such a disastrous
history in the West"). Further support for claims that the law is eugenic
may be found in the comments of Health Minister Chen Minzhang, who
proposed the initial draft of the law as the "National Eugenics Programme"
to combat the problem of "births of inferior quality." Anthony O'Brien,
Editorial, China's Genetics Law, TIMES (London), June 13, 1995, at 17.
Chen Minzhang also stated that this problem happened more frequently among
"ethnic minorities, frontier peoples and economically poor areas." Id.
(168.) See Li, supra note 64, at 162.
(169.) See id. "This eugenics policy is not based on
agreed scientific information about the transmission of parents'
conditions to their offspring...." Caught Between Tradition and the State:
Violations of the Human
Rights of Chinese Women, 17 WOMEN'S RIGHTS L. REP. 285,
298 (1996) [hereinafter Tradition & State].
(170.) See Gomez, supra note 70, at 572.
(171.) See Li, supra note 64, at 162.
(172.) See Gomez, supra note 70, at 572.
(173.) See id.
(174.) See id. Chinese minority groups have been
described by officials as "low in population quality," which includes
characteristics such as mental retardation and short stature in addition
to hereditary defects. O'Brien, supra note 167, at 17. O'Brien suggests
that minorities such as Tibetans under Chinese control may fear this law
as part of the "final solution." Id.
(175.) Gomez, supra note 70, at 572. Alastair Kent of
Britain's Genetic Interest Group stated, "The problem is that the state
defines who may have children. In China, `serious genetic disability'
could mean just being Tibetan." Birth Rights, NEW SCIENTIST, Sept. 9,
1995, at 13.
(176.) See Gomez, supra note 70, at 571.
(177.) See Nigel Hawkes, Scientists Attack China Over
Selective Breeding, TIMES (London), June 5, 1995, at 19.
(178.) See id.
(179.) See Women's Rights, supra note 65, at 1152.
(180.) See Gomez , supra note 70, at 572; Chan Wai-Fong,
Law Bans Pregnancy by "Unfit" Mothers, S. CHINA MORNING POST, Nov. 8,
1994, at 7, available in 1994 WL 8786467.
(181.) See Schmetzer, supra note 165.
(182.) See Clarification of Maternal, Infant Health-Care
Law Planned, XINHUA ENGLISH NEWSWIRES, Aug. 13, 1998, available in 1998 WL
12177752.
(183.) See MIHCL, supra note 159, art. 32.
(184.) See Li, supra note 64, at 169.
(185.) See Girls Disappear, supra note 93, at 14. Part
of this belief lies in the tradition that only males are able to carry on
the family lineage. See id. Additionally, girls are viewed as providing
lower productivity to the family unit, because they leave the family when
they marry, and require a sizable dowry for marriage. See Women's Rights,
supra note 65, at 1149.
(186.) See Women's Rights, supra note 65, at 1149-50.
(187.) See Li, supra note 64, at 169. Sex-screening is
so important to prospective parents that it has become a highly profitable
business, and virtually anyone who can pay for the services can obtain
them. See id. at 170. Furthermore, reports estimate that 97.5% of all
fetuses aborted in China are female. See Tradition & State, supra note
169, at 298.
(188.) See Li, supra note 64, at 170. In one of the
first known cases of punishment for identifying the sex of fetuses, a
physician was sentenced to four years in prison after eight women who used
his services aborted female fetuses. See Retired Doctor Lands in Jail for
Identifying Sex of Fetuses, supra note 167.
(189.) See Government to Clarify "Ambiguity" on Rules
Against Pregnancy, XINHUA NEWS AGENGY, Aug. 15, 1998, available in LEXIS,
News Library, TBBCSW File.
(190.) See Elisabeth Rosenthal, Chinese Law Sparks
Scientific Debate Over Genetics, Sterilization, HOUS. CHRON., Aug. 16,
1998, at A28. Geneticists from several countries boycotted the prestigious
meeting because they took offense to the Eugenics Law. See id; Carolyn
Abraham, Don't Shun Conference in China: Canadians Scientists Divided over
Genetics Meeting, GLOBE & MAIL, July 31, 1998, at A3.
(191.) See Rosenthal, supra note 190.
(192.) See id.
(193.) See Elisabeth Tacey, Roots of a Controversy, S.
CHINA MORNING POST, Aug. 16, 1998, available in 1998 WL 22025369.
(194.) See id. However, a prominent Chinese geneticist
explained to the press that that China has never practiced any type of
informed consent. See id.
(195.) See John Pomfret, China Clarifies Its Law on
Sterilization, WASH. POST, Aug. 18, 1998, at 210 [hereinafter China
Clarifies].
(196.) See id.
(197.) See China Clarifies, supra note 195.
(198.) See id.
(199.) See id.
(200.) Id.
(201.) See John Pomfret, China Suspends Sterilization of
People with Genetic Ills, INT'L HERALD TRIB., Aug. 18, 1998, at 5.
(202.) See China Clarifies, supra note 195.
(203.) See Li, supra note 64, at 184.
(204.) China Clarifies, supra note 195.
(205.) Id.
(206.) See Li, supra note 64, at 150-51.
(207.) Id. at 150.
(208.) See id. at 151.
(209.) See Tradition & State, supra note 169, at 295.
(210.) See id.; Gomez, supra note 70, at 568; U.S. Dept.
of State, Country Reports on Human Rights Practices for 1995 [sections] 1f
(Comm. Print 1996) (discussing the prevalence of the use of force, and how
punishment rarely exceeds minimal disciplining and retraining).
(211.) See Gomez, supra note 70, at 568-69. Tradition &
State, supra note 169, at 295 (discussing incidents of women who are
seven, eight, and nine months pregnant being forced to submit to abortions
by local population control officials).
(212.) See Tradition & State, supra note 169, at 295.
(213.) See id.
(214.) See id. Central authorities deny responsibility
for these measures, but this claim lacks credibility. See id.
(215.) See Li, supra note 64, at 154.
(216.) See id. at 154-55. Officials are judged on the
achievement of their birth quotas, and failure to meet them may result in
fines, penalties, anddemotions. See id. at 155.
(217.) See China Clarifies, supra note 195.
(218.) Andy Coghlan, Perfect People's Republic, NEW
SCIENTIST, Oct. 24, 1998, at 18.
(219.) See id.
(220.) See id.
(221.) See id.
(222.) See id.
(223.) Id. (expressing Xin Mao's view on why the Chinese
accept eugenic practices).
(224.) See id.; Dinah Ashman, Editorial, The Chinese
Way, NEW SCIENTIST, Nov. 14, 1998, at 58.
(225.) Coghlan, supra note 218.
(226.) See id.
(227.) See Maha Munayyer, Comment, Genetic Testing and
Germ-Line Manipulation: Constructing a New Language for International
Human Rights, 12 AM. U. J. INT'L, L. & POL'Y 687, 688 (1997).
(228.) See id.
(229.) Id. at 688-89.
(230.) See id. at 689.
(231.) See id.
(232.) See id. at 695-96.
(233.) Id. at 696 (quoting Robert N. Proctor, Genomics
and Eugenics : How Fair is the Comparison?, in GENE MAPPING: USING LAW AND
ETHICS AS GUIDES 60 (George J. Annas & Sherman Elias, eds., 1992)). See
Vicki Norton, Comment, Unnatural Selection: Nontherapeutic Preimplantation
Genetic Screening and Proposed Regulation, 41 UCLA L. REV., 1581, 1587
(1994) (discussing how African Americans who were carriers for sickle cell
anemia were discriminated against in job opportunities, insurance costs,
and admission to the Air Force Academy).
(234.) See Munayyer, supra note 227, at 692-93
(discussing potential applications of germ line manipulation).
(235.) See id. at 692-93.
(236.) See id. at 693-95.
(237.) See generally Norton, supra note 233.
(238.) See Gina Kolata, Researchers Report Success in
Method to Pick Baby's Sex, N.Y. TIMES, Sept. 9, 1998, at A1.
(239.) See Richard Nygaard, Genetics and the Law: The
Ethical, Legal, and Social Implications of Genetic Technology and
Biomedical Ethics (Jan. 19, 1996), in 3 U. CHI. L. SCH. ROUNDTABLE 1996 at
417, 418. See also Jodi Danis, Sexism and "The Superfluous Female":
Arguments for Regulating Pre-Implantation Sex Selection, 18 HARV. WOMEN'S
L.J. 219, 220 (1995).
(240.) See Norton, supra note 233, at 1583.
(241.) See Danis, supra note 239, at 220.
(242.) See Kimberly Mills, Editorial, Scientific
Progress Again Outpaces Ethics, SEATTLE POST INTELLIGENCER, Sept. 13,
1998, at E2. See also Norton, supra note 233, at 1601 (citing Geoffrey
Cowley et al., Made to Order Babies, NEWSWEEK, Winter/Spring 1990 (Special
Issue) at 94) (discussing requests for prenatal gender diagnosis which led
to sex-selective abortions and noting that the highest rate of
sex-selective abortion occurred among doctors' families).
(243.) See Norton, supra note 233, at 1601-02
(explaining how genetic testing is used for more controversial goals such
as sex-selective abortions).
(244.) Mills, supra note 242.
(245.) See WILLIAM J. CURRAN ET AL., HEALTH CARE LAW AND
ETHICS 794 (5th ed. 1998).
(246.) see supra Part IV.A and accompanying notes
99-117, for a discussion of the goals of current sterilization law in the
United States.
(247.) See Jaegers, supra note 13, at 962--65.
(248.) See Scott, supra, note 104, at 812.
(249.) See supra note 136 (discussing petitions for
sterilization by parents of the mentally handicapped).
(250.) See generally Jaegers, supra note 13 (explaining
that many laws require incompetence to be established before nonconsensual
sterilization is considered). Most jurisdictions require a preliminary
finding under Hayes that the person is incompetent before proceeding with
the sterilization petition. See id. at 962 n.86, Wentzel v. Montgomery
Gen. Hosp., Inc. 447 A.2d 1244, 1253 (Md. 1982); In re C.D.M., 627 P.2d
607, 612-13 (Alaska 1981); In re Grady, 426 A.2d 467, 482 (N.J. 1981).
(251.) See Cepko, supra note 115, at 127. Some courts
emphasize that the likelihood of hereditary disability has no impact on
the sterilization decision. See id.
(252.) See, e.g., In re A.W., 637 P.2d 366, 368 (Colo.
1981); In re Grady, 426 A.2d at 473 n.3.
(253.) See China Clarifies, supra note 195; Li, supra
note 64, at 151.
(254.) See Li, supra note 64, at 151. Communist Party
Directives supersede existing law and there are no limits on the Party's
powers. See id. Furthermore, there are few opportunities to challenge
these policies. See id.
(255.) See Gomez, supra note 70, at 568-69. Reports
describe sterilization by force and coercion, and at times without the
woman's knowledge. See id. at 569.
(256.) See supra Part V.A and accompanying notes for a
discussion of the involuntary nature of sterilization and abortion
practices based on controversial provisions of the MIHCL. While this law
stipulates that ligation or the termination of a pregnancy has to be
consented to by the pregnant woman (or, if she is legally incompetent, by
her guardian), serious doubt remains that this gives the woman much
protection in practice. See Li, supra note 64, at 161-62.
(257.) See Li, supra note 64, at 161-62. In the
"explanation" issued by the Chinese government, officials stated they
would seek definition of which hereditary conditions are serious enough to
warrant sterilization. See China Clarifies, supra note 195.
(258.) See generally Gomez, supra note 70, at 571-72.
(259.) Compare Li, supra note 64, at 148-55 (outlining
the population policy and its results) with Whalen v. Roe, 429 U.S. 589,
599-600 (1977) (describing the individual's "interest in independence in
making certain kinds of important decisions" as central to the right of
privacy) and Scott, supra note 104, at 833-40 (noting that personal
autonomy and the fundamental right to individual reproductive choices are
recognized in the United States).
(260.) See Women's Rights, supra note 65, at 1151.
(261.) See In re Grady, 426 A.2d 467, 474 (1981)
(holding that under some circumstances, an individual's personal right to
control her own body and life overrides the state's general interest in
preserving life); Scott, supra note 104, at 823-24.
(262.) See Roe v. Wade, 410 U.S. 113, 153-54 (1973)
(holding that individuals have a right to privacy that includes a
qualified right to an abortion); Griswold v. Connecticut, 381 U.S. 479,
485-86 (1965) (holding that married couples have a right to privacy that
includes non-interference in contraception); Eisenstadt v. Baird, 405 U.S.
438, 454-55 (1972) (extending the right to the use of contraception to
unmarried persons); In re Valerie N., 707 P.2d 760, 777 (Cal. 1985)
(holding that individuals have a fundamental right to procreation that
includes a right to consent to sterilization).
(263.) Paul, supra note 1, at 68 (emphasis in original).
(264.) See id. at 70.
(265.) See id.
Gail Rodgers, This Comment received the Gus A. Schill, Jr. Writing Award
and was named the Best Candidate Paper of 1998-99 by the Houston Journal
of International Law.
More information about the paleopsych
mailing list