Restriction Of Fertility Treatments In China: Law Against Human Rights?

By: Mollie M. McSweeney

Reproductive rights of women are respected in many countries, including the United States; however, this freedom is still not a reality in most countries in Southeast Asia, and many Islamic nations.[1] In China, it is against the law for unmarried women to seek any sort of reproductive technology to aid in bearing children.[2] The ban placed upon unmarried women in China who are seeking reproductive technology to aid in bearing children, or for the purpose of freezing their eggs, is simply infringing on basic and fundamental human rights.

Science has made significant advances in the world of reproductive technologies that assist women all over the world who are unable to bear children.[3] With the advances of science, women can freeze their eggs, allowing them to have children much later in life when it would most likely not be possible otherwise.[4] Factors including the rise of women in the workplace, the population as a whole is waiting longer to get married—or even deciding not to marry at all— serve as rationale for why women are more commonly interested in having children later in life and therefore seeking the option to freeze their eggs, so that they can keep this choice open for the future.[5] This reproductive technology gives freedom to women who want to pursue their careers, or women who do not have interest in getting married at an age that is “optimal” for having a child, as according to society in China.[6] The Chinese Health Commission advises women in China to give birth at the age of twenty-four to twenty-nine, and warns them of the risk of childbearing after the age of thirty-five.[7]

Notably, Chinese women who are unmarried by the age of thirty are often stigmatized as “leftover women,” and they are denied the rights to reproduction.[8] The Chinese government attempts to restrict single, unmarried women from giving birth by creating extreme consequences for a child born out of wedlock,[9] and the government bans single, unmarried women from seeking reproductive technology such as freezing their eggs. Only married women who can provide a marriage certificate and a license to give birth are permitted to use any sort of reproductive technology according to China’s family planning authority, The National Health and Planning Commission.[10] Under the current regulations enacted by the Chinese government, if a woman is not married, she is denied the right to have children.[11] This restriction conflicts with the basic and fundamental right to reproduce, and it also creates grave issues for the LGBT community. Gay marriage is not recognized in China, and therefore partners are classified as “single,” which means these couples are prohibited by the government to have any children.[12] This current restriction on unmarried women is largely related to the dominant patriarchal values in Chinese society.[13] The idea of women having children outside of marriage is contrary to the moral order within society in China.

Government regulations not only limit access to reproductive technologies, but the regulations also work to ensure complete restriction for a woman who wants to give birth to a child before marriage. In order to give birth, a woman must provide a “reproduction permit.”[14] The “reproduction permit” or otherwise known as “birth permit,” ensures that prenatal medical care is only given to married women.[15] If a woman has birth to a child before marriage, she will be penalized with a “social maintenance fee,” which is to be determined by the provincial governments and is sometimes three to six times of a household’s annual income.[16] Additionally, children born to unmarried mothers are unable to “legally register to get a “hukou,” which is a crucial document that all Chinese citizens need to get access to education, health care, to marry, or even open a bank account.”[17]

These restrictions have caused many single Chinese women to go overseas to seek reproductive services. However, some women are unable to pay for the travel costs, as well as the procedure itself. For example, the travel website “Ctrip.com” offers a seven-day trip to California which includes tours and sessions at a clinic for egg freezing costs around $175, 868.[18] Other egg freezing services can be less expensive, ranging around $25,700 per cycle for all services and medications.[19] However much the reproductive technologies cost, a single mother and her child will still be a social outcast, forced to pay a social maintenance fee, and the child would be unable to receive medical care, access to education, and face other challenges. This restriction impedes on the human right to decide what to do with one’s body.

Furthermore, over the years, less and less women in China are desiring to marry, but this does not mean that these women also want to give up their right to give birth. In Shanghai, the age for a woman’s first marriage used to be around twenty, by 2014, the average age was up to twenty-eight.[20] It is more common for women to be involved in their careers, which means starting families will most likely begin later in life.

Choosing to engage in reproductive services, such as freezing one’s eggs, and choosing to marry are two completely different rights that should not be intertwined. Based on Population and Family Planning Law, “Chinese citizens enjoy reproductive rights, as well as the duty of carrying out family planning according to the law.”[21] Since unmarried woman are “national citizens,” they too, should be able to enjoy the right to choose to participate in reproductive technologies, such as freezing their eggs. Reproductive rights are a basic and fundamental human right that is separate and distinct from the freedom to marry. A woman who chooses to give birth to a child is exercising her basic human right, whether she is married or not.

The Chinese government should reflect the values of a modern society, and should respect the reproductive rights of all woman, including married and unmarried women. The current reproduction policy must be reformed, marriage should not be a pre-requisite to the freedom of reproduction.

[1] Joyce Huang, China Debaes Egg-freezing Ban for Single Women, VOA News, (Aug. 24, 2015), https://www.voanews.com/a/china-debates-egg-freezing-ban-for-single-women/2929783.html.

[2] Carolyn Zhang, Chinese Women Head Oversees to Freeze Their Eggs, N.Y. Times (Aug. 30 2016), https://www.nytimes.com/2016/08/31/world/asia/china-us-women-fertility.html.

[3] China Debates Egg-Freezing Ban for Single Women, VOA News (Sept. 8, 2015), https://learningenglish.voanews.com/a/china-debates-egg-freezing-ban-single-women/2936664.html.

[4] Single Chinese women want to freeze their eggs and enjoy life, BBC News (Aug. 2, 2017), http://www.bbc.com/news/world-asia-china-40183587.

[5] Id.

[6] Id.

[7] Huang, supra note 1.

[8] Cherie Chan, China’s unmarried women struggle to overcome barriers to having babies, Deustche Welle (Nov. 23, 2016), http://www.dw.com/en/chinas-unmarried-women-struggle-to-overcome-barriers-to-having-babies/a-36488553.

[9] Tania Branigan, For Chinese women, unmarried motherhood remains the final taboo, The Guradian (Jan. 20, 2014), https://www.theguardian.com/world/2014/jan/20/china-unmarried-motherhood-remains-final-taboo.

[10] Chan, supra note 8.

[11] Id.

[12] Id.

[13] Id.

[14] By Ye Peng, Single women have the right to give birth, China Daily (Aug. 7, 2015), http://www.chinadaily.com.cn/opinion/2015-08/07/content_21524131.htm.

[15] Chan, supra note 8.

[16] Id.

[17] Id.

[18] How a ban is forcing China’s single women to put their fertility on ice overseas, South China Morning Post (Aug. 20, 2017), http://www.scmp.com/news/china/society/article/2107287/how-ban-forcing-chinas-leftover-women-abroad-freeze-their-eggs.

[19] Id.

[20] Id.

[21] Li Yinhe, Every Woman Should Have Her Reproductive Rights, Women of China (Aug. 6, 2015), http://www.womenofchina.cn/womenofchina/html1/columnists/1508/568-1.htm.