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Population policy and eugenic theory: implications of China's ratification of the United Nations convention on the rights of persons with disabilities.

China and the Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities (CRPD) came into force in May 2008 and is the first new human rights treaty of the 21st century. (1) The treaty is considered revolutionary in that it soundly rejects the medical and welfare approaches to disability, which focused on the "affliction" and the need to care for, treat or protect the affected individual. Instead, the treaty embraces the social and human rights models, which view people with impairments as rights holders who are often more disabled by physical and attitudinal barriers than by particular impairments. (2) Disability is considered a form of social oppression, which can be best addressed through laws and policies that affirm and implement the rights of persons with disabilities. The CRPD thus focuses on capability, inclusion and the removal of the physical and attitudinal barriers. The treaty was adopted because the international community recognised that persons with disabilities were living in deplorable conditions, frequently segregated from society and deprived of their basic human rights. (3) In theory, the rights of persons with disabilities should have been protected under several pre-existing human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Unfortunately, the monitoring committees for these treaties generally paid insufficient attention to disability issues and were not fully engaged in the social model of disability. (4) The United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities sought to improve the quality of life for persons with disabilities, but these rules were not legally binding. (5) Thus, there was a need to adopt a thematic treaty, one that would address disability in a comprehensive and detailed manner and make it clear that persons with disabilities are rights holders under international law. The treaty is also important in that it has moved away from the traditional distinction between "civil and political" rights, and "economic, social, and cultural" rights. This distinction has dominated international human rights discourse since the adoption of the ICCPR and the ICESCR, the two treaties that translated the Universal Declaration of Human Rights into enforceable obligations. The CRPD, on the other hand, embraces a more holistic view of what human rights means for persons with disabilities, which may involve a combination of rights traditionally set forth in separate treaties. (6) For example, Article 21 of the CRPD affirms that people with disabilities shall enjoy freedom of expression, which is found in the ICCPR and is often categorised as a "negative right" on the ground that the state can fulfil its duties simply by not interfering with citizens' rights to express opinions and access information. Yet, in the CRPD, the concepts of freedom of expression and access to information are not simply "negative rights" because Article 21 also imposes affirmative duties on the state, such as promoting accessible technologies and the use of sign language. This means that the traditional distinction between "negative" and "positive" rights largely disappears in the CRPD.

The concept of adopting a treaty on disability and human rights received substantial support from the Chinese government, as well as from other governments in the Asia-Pacific region. For example, the first World NGO Summit on Disability was held in Beijing in 2000, generating the Beijing Declaration on the Rights of People with Disabilities in the New Century. The Declaration called for the adoption of an international treaty to "promote and protect the rights of persons with disabilities, and enhance equal opportunities for participation in mainstream society". (7) The United Nations General Assembly later adopted a resolution establishing an Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection of the Rights and Dignity of Persons with Disabilities, to consider proposals for a treaty. (8) The Ad Hoc Committee held a total of eight sessions from 2002-6 and adopted an unusually open and inclusive approach to drafting. (9) Governments were encouraged to include persons with disabilities in their delegations and funding was provided to enable representatives of disability rights organisations to attend the meetings of the Ad Hoc Committee. More than 400 representatives of civil society registered for some of the meetings and other groups submitted detailed comments through the Internet. (10)

Disability rights organisations in the Asia-Pacific region were active in the consultation process, perhaps because they had been disappointed by the lack of progress during the Asian and Pacific Decade of Disabled Persons. In 2002, at the conclusion of the first decade, only a few countries in the region had enacted domestic laws prohibiting disability discrimination and much of this legislation did not embrace a rights-based approach to disability. (11) The region had also failed to substantially improve the educational attainment and general quality of life for persons with disabilities. The Asian and Pacific Decade of Disabled Persons was therefore extended for a second decade (until 2012) and a regional plan, known as the Biwako Millennium Framework For Action Towards an Inclusive, Barrier Free and Rights-Based Society for Persons with a Disability in Asia and the Pacific, was adopted. (12) The document included specific targets, one of which was to encourage governments to enact legislation requiring equal opportunities for and treatment of persons with disabilities. The United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) also sponsored a series of regional workshops to discuss the draft of the proposed treaty on disability rights. A regional meeting in Beijing produced the Beijing Declaration on Elaboration of an International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, which suggested specific goals for the new treaty. (13)

The drafting of the CRPD was completed in less than five years, a short period of time given the large number of participants, submissions and highly controversial issues. In December 2006, the United Nations General Assembly approved the text of the treaty, and also the Optional Protocol, a separate but related treaty that contains an individual complaints procedure and an inquiry procedure. (14) The speech by the Deputy Permanent Representative of China, Mr. Liu Zhenmin, highlighted his government's efforts to promote the treaty and its contributions to the meetings of the Ad Hoc Committee. (15) Although it has been observed that China's position on particular articles did not always reflect a rights-based approach, there is no doubt that China endorsed the general effort to create a treaty prohibiting disability discrimination. (16)

The CRPD was opened for ratification on 30 March 2007 and 82 nations immediately signed the treaty, including China. (17) This is the largest number of opening signatures ever recorded for a United Nations human rights treaty. The CRPD obtained its 20th State Party (Ecuador) on 3 April 2008 and entered into force on 3 May 2008. In June 2008, the Standing Committee of the National People's Congress approved the CRPD in its plenary session, noting that China has approximately 80 million people with disabilities. (18) In August 2008, China became the first country in East Asia to ratify the CRPD. (19) By ratifying early, China became eligible to participate in the first meeting of States Parties and to nominate a member for the Committee on the Rights of Persons with Disabilities, the treaty-monitoring body. China nominated Professor Yang Jia, Founding Director of the Women's Committee of China's Association of the Blind and a Member of the World Blind Union's Asia-Pacific Region Women's Committee. (20) Professor Yang has since been elected Vice-Chair of the Committee. Pursuant to Article 34(3), Committee members serve in their personal capacities and do not represent their governments. Nonetheless, having a member on the Committee will likely ensure that certain perspectives of the Chinese government are reflected in the Committee's procedures and approaches.

China's speedy ratification of the CRPD contrasts sharply with its cautious engagement with other human rights treaties. China signed the ICESCR in 1997 but did not become a State Party until 2001, and when it did so, Beijing entered a reservation from Article 8(1), relating to the right to freely form and join trade unions. China also entered a reservation for its family planning policies when it ratified the Convention on the Rights of the Child. (21) It has been particularly cautious with respect to the ICCPR; it signed the treaty in 1998 but still has not become a State Party. As a signatory, the Chinese government is supposed to refrain from any acts that are inconsistent with the ICCPR but it does not need to report to the Human Rights Committee, the body that monitors implementation of the treaty. As of 2009, China stated that it was still working on reforms necessary to "prepare the ground for approval of the ICCPR". (22)

The Chinese government apparently felt more confident about ratifying the CRPD, perhaps because it has had a national law prohibiting disability discrimination for almost 20 years. This is largely due to the advocacy work of Deng Pufang, son of the late Deng Xiaoping. Deng Pufang was persecuted and injured during the Cultural Revolution, uses a wheelchair, and has been recognised by the United Nations for his work on disability rights. (23) During the 1980s, Deng Pufang and his colleagues persuaded the government to conduct the first national survey of disability and to establish the China Disabled Persons' Federation. (24) Over the years, the Federation has grown into a prominent semi-governmental organisation with thousands of local branches. (25) The Federation has been a controversial organisation, sometimes accused of handing out jobs as political patronage and of excluding people with disabilities. (26) Yet it has also sponsored many rehabilitation programmes and has gradually adopted a more "rights-based" discourse on its website, (27) in international and regional meetings, (28) and reports to international bodies. (29) The Federation also promoted China's first Law on the Protection of Persons with Disabilities (LPPD), which was enacted in 1990 and amended in 2008, shortly before China became a State Party to the CRPD. (30) It should not be assumed, however, that the LPPD brings China into compliance with the CRPD. The legislation largely reflects a medical approach to disability and certain provisions are overtly patronising, even after the 2008 amendments. Moreover, although the LPPD states that people with disabilities shall enjoy equal rights, it does not define unlawful discrimination, making it almost impossible to enforce.

If the Chinese government conducts a thorough review, it will likely find that many of its domestic laws and policies fall short of what is required by the treaty. This is partly because the CRPD is the most detailed and far-reaching human rights treaty to which China has become a State Party. The common observation that the CRPD does not create new rights understates its content and potential impact. In fact, the treaty "fundamentally enriches and modifies the content of existing rights" when applied to people with disabilities, often by reformulating and extending rights. (31) Moreover, as China is still only a signatory to the ICCPR, ratifying the CRPD inevitably expands the scope of rights on which the government must report to a treaty-monitoring body. The CRPD contains many "negative" rights, including freedom of expression (Article 21), freedom of association (Article 29), and the right to privacy (Article 22). As discussed in the next section, the CRPD also contains detailed rights relating to marriage and procreation and condemns restrictions on the fertility of persons with disabilities.

The Rights to Life, Marriage, and Procreation under the CRPD

Eugenic laws and policies are a particularly tragic chapter in the history of discrimination against persons with disabilities. Eugenic theories were openly promoted in the late 19th and early 20th centuries and inspired a number of Western jurisdictions to adopt laws that directly infringed upon the rights of persons with disabilities to marry and procreate. For example, in the United States, the state of Connecticut adopted a law prohibiting "epileptics, imbeciles, and feebleminded persons" from marrying or having extramarital sexual relations before the age of 45. (32) Sterilisation was also widely practised on persons deemed to be intellectually disabled. When Virginia's sterilisation law was challenged on constitutional grounds, the United States Supreme Court upheld it in the famous case of Buck v. Bell, in which Justice Oliver Wendell Holmes proclaimed, "[t]hree generations of imbeciles are enough". (33) Eventually, at least 23 state legislatures enacted eugenic sterilisation laws, leading to the sterilisation of approximately 60,000 Americans. (34) Although the Supreme Court later declared, in Skinner v. Oklahoma, (35) that procreation is a fundamental right (and therefore, a state statute restricting it must be subject to strict scrutiny by the courts), the principle announced in Buck v. Bell has never been expressly overruled. (36)

The Canadian provinces of Alberta and British Columbia also adopted laws under which sterilisation could be imposed as a condition for discharging inmates from psychiatric institutions. The underlying premise was that it would not be safe to discharge a patient unless the "danger of procreation" and the "evil of transmission of the disability to progeny" could be eliminated. (37) Sterilisation laws were also used to restrict reproduction by members of certain races and social classes. While Nazi Germany is the most notorious example, Sweden also had a "racial hygiene" programme, under which more than 60,000 Swedes were sterilised without consent. The unifying theory of all these programmes was that society had a compelling interest in "improving the population" and that this somehow justified violating the reproductive rights of persons perceived to be inferior.

Similar theories emerged in early Republican China, where public health was expressly linked to the goal of regenerating the nation and proponents of eugenics argued that people with "subnormal abilities" should be physically prevented from "perpetuating their infirmities". (38) These theories were initially referred to as renzhonggailiang (improvement of the race), shuzhongxue (science of racial betterment), or zhesixue (science of intelligent descendants). (39) Eventually, the term youshengxue emerged, which has been translated as "eugenics" but literally means "science of superior birth". Although some people opposed these theories, the concepts of eugenics and racial improvement were widely embraced in Republican China. (40) In 1941, the Ministry of Social Affairs organised a Committee for the Study of Population Policies, which recommended systematic implementation of eugenics, including the segregation of people with "hereditary defects" from the general population and the use of sterilisation to achieve racial rejuvenation. (41) While the Japanese invasion and the civil war prevented implementation of these recommendations by the Guomingdang, the willingness to restrict individuals from procreating was well established during this period (which probably made it easier for the Communist Party to implement the policies described below).

After World War II, eugenic theories were widely associated with the atrocities of Nazi Germany and publicly discredited in Western countries. However, the obsession with racial purity in Nazi Germany sometimes obscures the more general practice of sterilising persons with intellectual disabilities, a practice that quietly continued after World War II in some nations. Reports of non-consensual sterilisation have continued to surface around the world and laws reflecting eugenic theory still lurk in some statute books. (42) For example, a recent review of legislation in the United States located six states and territories with laws that restrict marriage (or provide for annulment) on the grounds of disability. (43) Although these laws are no longer enforced and would be vulnerable if challenged in court, their existence is a constant reminder of dehumanising treatment.

It should be noted that the rejection of eugenic theories does not necessarily put an end to the debate on whether non-therapeutic sterilisation can be carried out on certain individuals without consent. Parents of children with intellectual disabilities sometimes request surgical sterilisation, on the grounds that their child cannot manage menstrual hygiene or could not cope with the trauma of pregnancy and childbirth. In the United States, judges have approved sterilisation in selected cases by applying the "best interests of the child" test or the "substituted judgement" test (which requires the judge to determine whether a young woman would seek sterilisation on her own if she had decisional capacity). The English House of Lords has taken a similar approach, approving sterilisation where it was satisfied that it would offer protection to a learning disabled woman. (44) Although eugenic considerations are never explicit in these cases, it is certainly possible that a court's decision may be influenced by stereotypical assumptions about persons with intellectual disabilities and their capacity to parent. The Supreme Court of Canada cited the danger of such assumptions when it refused to use its parens patriae jurisdiction to authorise sterilisation in Re Eve. (45) Warning that our social history could encourage people to "perceive the mentally handicapped as somewhat less than human", the Court essentially barred the use of non-therapeutic sterilisation for Canadians who lack decisional capacity. (46) The reaction to the Canadian decision has been mixed: while some welcomed it as affirming the dignity and right to bodily integrity of persons with disabilities, others have criticised the court for focusing exclusively on the female body's reproductive role and failing to consider that a woman who lacks decisional capacity might value the increased sexual freedom that comes with surgical sterilisation. However, both sides of this debate would agree that eugenic theories must not be used by a court or a legislature to justify non-consensual sterilisation. (47)

In light of the painful history of eugenic policies, it is not surprising that the drafters of the CRPD would want to address the issues of life, marriage, and reproduction. Three articles in the treaty are particularly relevant. Article 10 affirms that every human being has the inherent right to life and obligates States Parties to take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. Article 23 calls for the elimination of discrimination against persons with disabilities in all matters relating to marriage, family and parenthood, and Article 25 requires States Parties to provide persons with disabilities with equal access to sexual and reproductive health services.

The drafting history of these three articles reveals inherent philosophical tensions among the governments and non-governmental organisations that helped to shape the CRPD. If one views life as commencing at conception, then access to certain reproductive services (abortion and post-coital methods of conception) conflicts with the right to life. This concern ultimately prevented the Holy See from signing the CRPD, although the Pope was initially supportive of the treaty. Indeed, the Pope gave a special homily in recognition of the 25th anniversary of the Declaration of the Rights of the Disabled, calling upon those with political responsibilities to work towards "ensuring living conditions and opportunities such that your dignity, dear disabled brothers and sisters, is effectively recognised and protected". (48) The Holy See also participated in the deliberations of the Ad Hoc Committee that drafted the CRPD. (49) Yet the Holy See ultimately declined to sign the treaty because of the reference to sexual and reproductive health services in Article 25. Although the Holy See itself does not interpret Article 25 as providing a right to abortion (but rather only as ensuring that disability is not the basis for denying a health service), it declined to sign an instrument that referred to "sexual and reproductive health services" because some countries do provide abortion within this category of service. (50)

In refusing to sign, the Holy See noted that a "foetal defect" is often considered a precondition for abortion. (51) It is true that national abortion laws frequently prohibit abortion generally but allow it where prenatal testing reveals that the pregnancy will lead to the birth of a child with a disability. (52) Such laws undeniably treat the unborn differently on the basis of disability. As it is now possible to identify hundreds of conditions in a foetus, pregnant women may feel pressured to undergo testing and to prevent the birth of a child with a disability. (53) The Catholic Church is not the only group that has been torn by this issue. The records of the Ad Hoc Committee reveal substantial debate on whether the provision on the right to life should refer to unborn children. Even groups that recognise the right of women to choose whether to continue a pregnancy have struggled to find ways to dissuade parents from terminating a pregnancy solely on the basis of disability. The following submission, from a coalition of Australian disability rights organisations, is an example of the attempt to find a middle ground between the woman's right to choose and the state's obligation to prevent discrimination on the ground of disability:
   This [issue] obviously presents a difficult ethical challenge, not
   least because of its potential impact on the choice of women in
   relation to pregnancy. However, it might be possible to address
   this issue more indirectly. For example, much of the information
   that is made available to parents at the time of genetic testing
   and immediately following the birth of a child with disability is
   overwhelmingly negative and inaccurate, and induces parents to opt
   for termination of pregnancy or withdrawal of life-sustaining
   treatments. It is possible to impose an obligation on States to
   ensure that prospective parents of a child with disability receive
   positive and realistic orientation to their child and its future
   life. This may reduce the chances that parents will opt for
   termination of pregnancy. (54)

Nonetheless, at the end of the drafting process, the right to life (now contained in Article 10) was expressed in very simple language, with no reference to the unborn or to the prevention of disability. As the New Zealand delegation pointed out, including a reference to the status of the unborn in Article 10 would have opened a "Pandora's box", one that would be difficult to close given the lack of agreement on this sensitive issue. (55) Thus, in the end, the drafters of the CRPD essentially agreed to disagree on the subject of abortion and to leave that disagreement out of the text of the treaty.

In contrast, the CRPD leaves no doubt that persons with disabilities have the right to reproduce. Article 23 calls for the elimination of discrimination against persons with disabilities in all matters relating to marriage, family, and parenthood. It also expressly requires States Parties to provide education and services to enable persons with disabilities to decide "freely and responsibly" on the number and spacing of their children, and to render appropriate assistance to persons with disabilities in the performance of their child- rearing responsibilities. At one level, Article 23 establishes the negative right to be free from government interference when deciding whether to marry and when to reproduce. However, Article 23 also endows persons with disabilities with a positive right to receive education and services that may be necessary for them to give birth to and care for their children. Moreover, Article 23 states emphatically that "persons with disabilities, including children, retain their fertility on an equal basis with others". Thus, the CRPD would appear to have embraced the approach taken by the Canadian Supreme Court in Re Eve, which was to reject non-consensual, non-therapeutic sterilisation as a degrading invasion of the right to bodily integrity and the inherent dignity of the person--even where the operation is not based upon any eugenic policy but rather, proposed on the grounds that it will benefit the individual.

In light of the detailed language in Article 23, many countries will need to review and perhaps amend laws and policies affecting reproductive rights of persons with disabilities. However, as demonstrated in the next section of the article, China's population policy will almost certainly attract heightened attention from the Committee on the Rights of Persons with Disabilities. This is partly because the Chinese government has exhibited an unparalleled willingness to interfere with and control the reproductive behaviour of its citizens, for which it has been criticised by other treaty-monitoring bodies. (56) Moreover, China has enacted legislation as recently as the 1990s that reflects eugenic theories.

China's Population Policy and Yousheng: Eugenics by Another Name?

Although the term "one-child" policy is often used to refer to China's population policy, this term is a misleading oversimplification. (57) The population policy is implemented through complex regulations that do not treat all couples alike. (58) The number of permitted children has depended upon a couple's birth control category. While urban couples were restricted to one child, most rural couples were permitted two, and ethnic minorities in rural areas could generally have two or three children. (59) Moreover, the issuance of second-child permits and a high number of unauthorised births have meant that the "one-child norm", while still officially proclaimed, often disguises a factual two-child situation. (60)

There is also debate within China on whether the country should move towards a more general two-child policy, so as to ease the negative social consequences of the strict limits on fertility. (61) Like many industrialised countries, China has a rapidly ageing population, which threatens to put an enormous burden on its social welfare system. (62) China also has an abnormal male-to-female ratio at birth, which causes significant social problems, including a shortage of Chinese women for men to marry and abduction of women as "brides". (63) However, relaxing the restrictions on fertility would not necessarily address the gender imbalance, because the traditional preference for sons could still lead couples to abort female foetuses and laws against sex-selective abortions have proven difficult to enforce. (64)

Couples in China are also treated differently on the basis of disability. While most international criticism of China has focused on the number of children permitted in a family, (65) Beijing's population policy has always had two objectives: control of population growth and "improvement in quality of the population". (66) The concern for population quality has increased as China has moved away from communism and egalitarianism and embraced the competitive marketplace. In post-socialist China, "some kinds of people matter more than others" and "the desirable, quality child is the talented offspring of urban intelligentsia". (67) This phenomenon has had severe repercussions for people with disabilities, repercussions that have been expressly sanctioned in the national Law on the Protection of Persons with Disabilities (LPPD). As enacted in 1990, Article 11 of the LPPD stated:
   The State shall undertake, in a planned way, the work of disability
   prevention, strengthen leadership in this regard, publicise and
   popularise knowledge of eugenics and disability prevention,
   formulate laws and regulations dealing with disability-causing
   factors, such as heredity, diseases, medical poisoning, accidents,
   calamity and environmental pollution, to prevent the occurrence and
   aggravation of disabilities by organising and mobilising social

Thus, China's first national law to prohibit discrimination against people with disabilities endorsed policies designed to curtail their reproductive rights. Beijing apparently realised that this provision could conflict with its obligations under the CRPD, because in 2008, it amended Article 11 as follows:
   The State shall undertake, in a planned way, disability prevention,
   strengthen leadership and publicity in this regard, popularise
   knowledge of maternal and infant health care as well as disability
   prevention, establish and improve mechanisms for the prevention,
   early detection and early treatment of birth defects, and mobilise
   social forces to take measures in dealing with disability-causing
   factors such as heredity, diseases, medication, accidents, calamity
   and environmental pollution, to prevent and alleviate disabilities.

The key difference is that "eugenics" has been replaced by "maternal and infant health care" in the English translation of the LPPD. However, this does not necessarily signal substantive change as defenders of China's policies have long argued that Western criticism reflects a misunderstanding of the Chinese term yousheng, which is sometimes translated as "healthy birth" and sometimes as "eugenics". (68) Thus, we need to examine the specific laws and policies in order to understand the nature of China's disability prevention programmes.

When Article 11 of the LPPD was first enacted, provincial governments were just beginning to adopt regulations preventing certain categories of people from marrying and/or requiring them to be sterilised in order to gain permission to marry. For example, in 1988, the National People's Congress of Gansu Province adopted legislation prohibiting reproduction by "intellectually impaired persons" if the cause of the impairment was hereditary, marriage to a close relative, or the fact that the person's mother or father was influenced by external factors. (69) An individual so classified was required to undergo sterilisation if already married or planning to marry; if a woman classified as "intellectually impaired" was found to be pregnant, then she was required to undergo an abortion. (70) Anyone caught violating the restrictions or allowing an intellectually impaired person to reproduce would be liable to punishment and fines. (71) Similar legislation followed in Liaoning province in 1990 and in Zhejiang and Henan provinces in 1992. (72) While these laws would appear to constitute unlawful disability discrimination, Article 11 of the LPPD, on the "prevention of disabilities" put the stamp of approval on this local legislation.

In 1993, three years after the LPPD was enacted, a draft national law on "eugenics and health protection" was presented to the Eighth National People's Congress. (73) It was strongly criticised by international human rights groups. (74) Nonetheless, the law was enacted in 1995, albeit with a more innocuous title: the Maternal and Infant Health Care Law (MIHCL). (75) Although the MIHCL does contain several provisions on general prenatal care, it also gives "tacit support to a eugenics policy by identifying those who are considered unfit to reproduce and by authorising methods for curtailing their ability to reproduce by sterilisation". (76) Article 12 of the MIHCL states that couples seeking marriage registration are required to hold either a certificate of medical examination or a certificate of medical appraisement. (77) Article 8 describes the "pre-marital examination", which is designed to screen couples for evidence of genetic, infectious and "relevant mental diseases". Assuming the couple passed, they would be issued a "certificate of pre-marital medical examination". If diagnosed with an infectious disease or mental illness, they would be directed to postpone their marriage. (78) If either the male or female was diagnosed with a genetic disease of a "serious nature, which is considered to be inappropriate for child-bearing from a medical point of view", then the couple would be allowed to marry only if they consented to long-term contraceptive measures or performance of ligation operations. (79)

Local medical authorities have enjoyed enormous discretion in deciding what conditions should disqualify a couple for marriage. For example, the Beijing Maternity Hospital maintained an inventory of "undesirable traits", including "a family history of blindness, deafness, low intelligence, extreme short sight and mental illness". (80) Even "unusual" facial and body features could be considered undesirable traits, allowing the examining physician to decide "whether a particular person looks, acceptably, like everyone else, or whether they are likely to reproduce others who confound physical norms". (81) If a couple disagreed with the results of the medical examination, they could apply for a "medical technical appraisement" and try to obtain a "certificate of medical appraisement, which would enable them to register the marriage". (82) In 2001 alone, 8.79 million people underwent the examination in China and 20,000 were deemed ineligible for marriage. (83)

The pre-marital examination was highly unpopular among young couples, who viewed it as unduly intrusive and merely a money-making procedure for hospitals. (84) In October 2003, new regulations were issued stating that the result of the pre-marital examination no longer needed to be presented when registering a marriage. (85) These regulations have been widely interpreted as making the medical examination voluntary, although the MIHCL still appears to require it. (86) It has been reported that the rate of pre-marital medical examinations "plummeted drastically" after 2003, with only a small percentage of couples obtaining a check-up prior to marriage. (87) Nonetheless, some provincial-level regulations do still require pre-marital medical examinations (88) and certain commentators have called for their general reinstatement, claiming that there has been an increase in the "incidence of congenital defects among newborn babies". (89) In late 2008, the minister of the National Population and Family Planning Commission (NPFPC) issued a press release stating that the "government must do more to prevent birth defects". (90) In 2009, the NPFPC announced a free screening programme for women who intend to become pregnant, noting that China has 800,000 to 1.2 million babies born with birth defects each year. (91) Although the programme will include many uncontroversial elements (such as promoting good nutrition among women intending to become pregnant), the Commission also promised to "further publicise the importance of pre-pregnancy health checks, offer eugenic advisory lectures, encourage research on birth defects and develop more effective medicines and treatments". (92) It remains to be seen whether these new disability prevention programmes will be coercive or whether they will rely primarily on propaganda.

In addition, China's legal framework not only allows but also actively encourages abortion if it appears that a baby will be born with a disability. Under the MIHCL, physicians are directed to give the couple "medical advice on termination of gestation" if the foetus is found to have "a genetic disease of a serious nature" or a "defect of a serious nature". (93) Although the law provides that termination should only be done with consent, (94) opinion surveys indicate that the majority of people in China will choose to terminate if advised that the foetus has a disability. (95) This willingness to abort is attributed to the perception that families (and China as a nation) cannot afford to care for children born with disabilities. Interestingly, however, similar results have been obtained in surveys of more prosperous Chinese communities in Hong Kong and Singapore. (96) Dikotter's review of Chinese medical literature also revealed numerous publications advocating the elimination of foetuses defined as "defective". (97) Euthanasia (referred to as yousi, or "superior death") has also been openly endorsed by certain medical authorities for babies born with disabilities. Although euthanasia is more controversial than abortion, it has nonetheless been observed that the "elimination of new-born infants with severe malformations is rarely seen to pose any particular ethical problems". (98) Specialists who support euthanasia view it as a component of the general effort to ensure yousheng, which is considered necessary for the well-being of the nation. (99)

Babies who are born with disabilities, together with unwanted female babies, are likely to be abandoned in China, and orphanages regularly receive children with conditions (such as hairlips and cleft palates) who could be treated. (100) In the mid-1990s, reports began to surface of children being neglected and underfed in these orphanages. For example, Human Rights Watch (Asia) claimed that children in orphanages are routinely left to die from medical neglect and starvation, with the tacit approval of senior political leaders. (101) Two days after the report was published, an extended version of the British television documentary The Dying Rooms, was re-screened in the United Kingdom. (102) The expanded version of the film included footage of the Shanghai Children's Welfare Institute, which had been featured in the report by Human Rights Watch. Beijing reacted furiously and issued a government white paper condemning the report as false. (103) Several international organisations with experience working in Chinese orphanages did not endorse the Human Rights Watch findings, noting that the poor conditions in orphanages were not caused by deliberate neglect but rather by limited resources and ignorance of children's physical and emotional needs. (104) However, virtually all agencies agreed that care of orphans was a low priority for the Chinese government at the time.

Thus far, it appears that the main change that China has made since ratifying the CRPD is to delete the word "eugenics" from the English translation of the LPPD. But the goal of improving the "quality of the population" does not seem to have changed and is arguably becoming more central, given the well-publicised concerns over the increasing numbers of children born with impairments. (105) Interestingly, in its National Human Rights Action Plan 2009-10 (issued after China ratified the CRPD), Beijing proclaimed that "women have equal rights in family planning with men" (106) and it promised to prohibit "[i]dentifying the sex of a fetus for other than medical purposes and termination of pregnancy in the case of a female fetus". (107) But there is no corresponding language proclaiming the rights of persons with disabilities in the areas of reproduction and family planning. Rather, in the section devoted to persons with disabilities, Beijing reiterated that it is developing "a national plan for preventing birth defects and reducing the number of people with disabilities". (108) Thus, while China now seeks to curb abortions on the basis of gender (by prohibiting foetal gender identification and sex-selective abortion), (109) it does quite the opposite with respect to abortions on the basis of disability: it requires prenatal identification of potential disabilities and actively encourages termination.

In the eyes of the Chinese government, disability prevention is a laudable goal, with few moral or ethical dilemmas. It does not seem to draw a distinction between distributing folic acid supplements and pressuring a woman to abort a pregnancy that might lead to the birth of a child with a disability. But the Committee on the Rights of Persons with Disabilities will almost certainly disagree. The compromise reflected in Article 10 of the CRPD recognises that women will continue to have access to abortion services in those countries that permit abortion. However, China goes further than this and actively encourages abortion on the basis of a suspected disability. This conflicts with the obligation to respect and promote the dignity of persons with disabilities. (110) The Committee will also strongly condemn any laws and regulations that restrict the right to marry and procreate on the basis of disability.


China deserves credit for supporting the CRPD and for becoming East Asia's first State Party to the treaty. However, commentators have already queried whether Beijing's increased engagement with international human rights treaties is genuine or "simply a cynical exercise of legal formalism" designed to fool the international community. (111) That view of China's approach to human rights will not be enhanced unless it reforms the population policy to comply with the letter and spirit of the CRPD. One has to wonder why the Chinese government ratified the CRPD without filing a reservation for family planning, as it did when it ratified the Convention on the Rights of the Child. It appears that the government wanted to be viewed as a leader in this field of human rights and believed that early ratification of the CRPD, without reservations, would promote that image. However, when China's initial report under the treaty is due, the Committee will want to know whether ratification has brought about meaningful reforms for the more than 80 million people with disabilities in China. Committee members will not be satisfied by self-congratulatory reports on education and employment, which currently dominate the website of China's Federation of Disabled Persons. The Committee will expect China to implement the full range of rights stated in the treaty, including basic civil liberties and the right to marry and procreate.

(1) The CRPD and the Optional Protocol (containing an individual complaints procedure and an inquiry procedure) can be viewed on the website of the recently established United Nations Committee on the Rights of Persons with Disabilities, the body of independent experts that monitors implementation of the treaty, at < treaty/index.htm> [15 Nov. 2009].

(2) See generally Rosemary Kayess and Phillip French, "Out of Darkness Into Light? Introducing the Convention on the Rights of Persons with Disabilities", Human Rights Law Review 8 (2008): 1-34. The terms "social model" and "human rights model" are often used interchangeably, at least in discussions of the CRPD. See, for example, Arlene S. Kanter, "The Promise and Challenge of the United Nations Convention on the Rights of Persons "with Disabilities", Syracuse Journal of International Law and Commerce 34 (2007): 287, 291-2.

(3) Anna Lawson, "United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?", Syracuse Journal of International Law and Commerce 34 (2007): 563-619.

(4) Gerald Quinn and Theresia Degener, et al., Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (Geneva: United Nations, 2003).

(5) United Nations Enable, Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, adopted by the United Nations General Assembly, 20 Dec. 1993, 48th session, resolution 48/96, annex, at < enable/dissre00.htm> [1 Dec. 2009].

(6) Frederic Megret, "The Disabilities Convention: Towards a Holistic Concept of Rights", International Journal of Human Rights 12, no. 2 (2008): 261-78.

(7) Beijing Declaration on the Rights of People with Disabilities in the New Century adopted 12 Mar. 2000, at <> [1 Aug. 2009].

(8) General Assembly Resolution 56/168: Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, adopted 19 Dec. 2001, at <> [1 Aug. 2009].

(9) See the website of United Nations Enable for drafts of the treaty, submissions, lists of attendees and other documents arising from the eight sessions of the Ad Hoc Committee, at < adhoccom.htm> [1 Aug. 2009].

(10) Don MacKay (Chair of the Ad Hoc Committee from 2005 onwards), "The United Nations Convention on the Rights of Persons with Disabilities", Syracuse Journal of International Law and Commerce 34 (2007): 323-31.

(11) UNESCAP, Disability at a Glance: A Profile of 28 Countries and Areas in Asia and the Pacific (2004), p. 3 (methodology of study) and p. 12 (data on domestic legislation).

(12) The Biwako Millennium Framework was later reviewed and supplemented at a regional mid-decade review. See Biwako Plus Five: Further Efforts Towards an Inclusive, Barrier-Free and Rights-Based Society For Persons with Disabilities in Asia and the Pacific, adopted at the High-Level Intergovernmental Meeting on the Midpoint Review of the Asian and Pacific Decade of Disabled Persons, 2003-2012, 21 Sep. 2007, at < psis/disability/bmf/APDDP2_2E.pdf> [10 Nov. 2009].

(13) Beijing Declaration on Elaboration of an International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, adopted 7 Nov. 2003, at the UNESCAP Regional Meeting on an International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, at < beijing2003/beijingdeclaration.htm> [1 Aug. 2009].

(14) Optional Protocol to the Convention on the Rights of Persons with Disabilities, at < law/disabilities-op.htm> [10 Aug. 2009].

(15) United Nations Enable, Statements Made on the Adoption of the Convention on the Rights of Persons with Disabilities, 13 Dec. 2006, at < convstatementgov.htm#ch> [1 Aug. 2009].

(16) Andrew Byrnes, "The Disability Discrimination Ordinance, the UN Convention on the Rights of Persons with Disabilities, and Beyond: Achievements and Challenges after Ten Years of Hong Kong Anti-discrimination Legislation", keynote presentation at Our Ten Years under the DDO--Moving Forward, Changing Cultures, organised by the Hong Kong Equal Opportunities Commission, Hong Kong, 24 Jan. 2008, [2008] UNSWLRS 13, at < flrps08/art13/> [15 Aug. 2009].

(17) International Convention on the Rights of Persons with Disabilities: Status of Ratifications, at < bodies/treaty/index.htm> [15 Nov. 2009]. As of 1 Dec. 2009, there were 143 signatories and 75 States Parties to the CRPD.

(18) Government of the People's Republic of China, Legislature Approves International Convention on Rights of Handicapped, 27 June 2008, at < 27/content_1028927.htm> [1 Dec. 2008]. China did not ratify the Optional Protocol to the CRPD.

(19) China entered one limited reservation concerning application of the CRPD to the Hong Kong Special Administrative Region, relating to immigration. This was requested by the Hong Kong government, which has a longstanding policy of not allowing human rights treaties to affect law and policy on immigration. Carole J. Petersen, "China's Ratification of the Convention on the Rights of Persons with Disabilities: The Implications for Hong Kong", Hong Kong Law Journal 38 (2008): 611-43.

(20) United Nations Office of the High Commissioner for Human Rights, Elected Members of the Committee on the Rights of Persons with Disabilities, at < CRPD/Pages/Membership.aspx> [20 Nov. 2009].

(21) China entered a reservation to Article 6 of the CRC on the inherent right to life, stating that China would fulfil its obligations "under the prerequisite that the Convention accords with the provisions of Article 25 concerning family planning of the Constitution of the People's Republic of China". See United Nations Treaty Collection, Status of Treaties, Chapter IV Human Rights, No. 11, Convention on the Rights of the Child, at < english/bodies/treaty/index.htm> [20 May 2009].

(22) Information Office of the State Council of the People's Republic of China, National Human Rights Action Plan of China (2009-2010), section II, at < 2009-04/13/content_17595407.htm> [20 Nov. 2009].

(23) United Nations, General Assembly President Announces Awardees of2003 United Nations Prize in the Field of Human Rights, UN Press Release GA/SM/340/HR/4710, at < gasm340.doc.htm> [15 May 2009].

(24) Matthew Kohrman, Bodies of Difference: Experiences of Disability and Institutional Advocacy in the Making of Modern China (Berkeley: University of California Press, 2005), especially chapters 2 and 3.

(25) For general information on the history and scope of the China Disabled Persons' Federation, see its website: <> [15 May 2009].

(26) For critique of the strategies that the Federation pursued in its early years, see Matthew Kohrman, Bodies of Difference: Experiences of Disability and Institutional Advocacy in the Making of Modern China, especially chapter 3.

(27) See, for example, "Rights Protection", China Disabled Persons' Federation, at < content/2008-04/10/content_84873.htm>; and "Human Rights Interview with Shen Zhefei", Vice President of the Federation, at < focus/content/2008-04/10/content_84851.htm> [1 Dec. 2009].

(28) The Federation regularly participates in meetings organised by the United Nations and its subsidiary bodies. See United Nations Economic and Social Council, Committee on Non-Governmental Organisations, Quadrennial Reports 2002-2005 submitted through the Secretary General pursuant to Economic and Social Council Resolution 1996/31, E/ C.2.2007/2, pp. 5-7 (containing the report of the China Disabled Persons' Federation).

(29) See, for example, China Disabled Persons' Federation-UPR Review on Disability Rights-China, Feb. 2009, submitted to the UN Human Rights Council as part of the Universal Periodic Review of China, Office of the High Commissioner for Human Rights, under Stakeholder Contributions, at < UPR/Pages/UPRCNStakeholdersInfoS4.aspx> [17 July 2009].

(30) The Law of the People's Republic of China on the Protection of Persons with Disabilities, enacted by the National People's Congress in 1990 and amended in 2008, is published in Chinese and English by the China Federation of Disabled Persons, at <> [15 Nov. 2009]. The limited impact of the 2008 amendments on reproductive rights is discussed below.

(31) Frederic Megret, "The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?", Human Rights Quarterly 30 (2008): 494-516.

(32) Robert J. Cynkar, "Buck v. Bell: 'Felt Necessities' v. Fundamental Values?", Columbia Law Review 81 (1981): 1418-61.

(33) Buck v. Bell, 274 U.S. 200, 207 (1927).

(34) See generally Paul Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore: John Hopkins University Press, 2008).

(35) Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating a law that provided for involuntary sterilisation of persons under the Habitual Criminal Sterilisation Act; the court relied in part upon equal protection grounds, as the law excluded certain crimes, such as embezzlement).

(36) Robert Lee and Derek Morgan, "Sterilisation and Mental Handicap: Sapping the Strength of the State?", Journal of Law and Society 15 (1988): 229-46.

(37) Kristin Savell, "Sex and the Sacred: Sterilisation and Bodily Integrity in English and Canadian Law", McGill Law Journal 49 (2004): 1093-141 (citing the Sexual Sterilisation Acts of Alberta and British Columbia, enacted in 1928 and 1933, respectively).

(38) Frank Dikotter, Imperfect Conceptions: Medical Knowledge, Birth Defects and Eugenics in China (New York: Columbia University Press 1998), p. 105.

(39) Ibid.

(40) For examples of the opponents, who were apparently in the minority among scientists and other professionals, see Frank Dikotter, Imperfect Conceptions, p. 111.

(41) Ibid., p. 113.

(42) Savell cites examples in Peru, Australia, France, and Japan. See note 37, pp. 1099-110. See also Diana Wyndham, Eugenics in Australia: Striving for National Fitness (London: The Galton Institute, 2003).

(43) Jonathan Matloff, "Idiocy, Lunacy, and Matrimony: Exploring Constitutional Challenges to State Restrictions on Marriages of Persons with Mental Disabilities", McGill Law Journal 17 (2009): 497-519.

(44) Kristin Savell, "Sex and the Sacred", p. 1121.

(45) E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388 (hereinafter Re Eve).

(46) Re Eve, paras. 76 and 99.

(47) The case arguably demonstrates the need for a statute on the issue, one that expressly rejects eugenic motivations and establishes proper safeguards, while also recognising the importance of each individual's circumstances and interests. For a proposal and summary of the competing views on the case, see Amy Spady, "The Sexual Freedom of Eve: A Recommendation for Contraceptive Sterilisation Legislation in the Canadian Post Re Eve Context", Windsor Review of Legal and Social Issues 25 (2008): 33- 67.

(48) Pope John Paul II, Jubilee of the Disabled, 3. Dec. 2000, para. 5, at < john_paul_ii/homilies/2000> [8 Nov. 2009].

(49) Statement by H.E. Archbishop Celestino Migliore, Permanent Observer of the Holy See to the United Nations, to Ad Hoc Committee on the Protection and Promotion of the Rights of Persons with Disabilities, 19 June 2003, at <> [8 Nov. 2009].

(50) H.E. Monsignor Celestino Migliore, Intervention by the Holy See at the 76th Plenary Meeting of the General Assembly of the United Nations on Human Rights and Fundamental Freedoms, 13 Dec. 2006, at < secretariat_state/2006/documents/ rc_seg-st_20061213_un-rights-persons_en.html> [20 Oct. 2009].

(51) Ibid. For further discussion of the Holy See's position on international instruments that address reproductive rights, see Chad Marzen, "The Holy See's Worldwide Role and International Human Rights: Solely Symbolic?", University of Detroit Mercy Law Review 27 (2009): 659-82.

(52) See Carole J. Petersen, "Reproduction and Family Planning: Individual Right or Public Policy", in Hong Kong, China and 1997: Essays in Legal Theory, ed. Raymond Wacks (Hong Kong: Hong Kong University Press, 1993), pp. 261-305 (comparing statutes in the United Kingdom and Hong Kong, which allowed abortion in exceptional circumstances, including disability of the foetus, with the United States, where women have a legal right to abortion in the first two trimesters of pregnancy).

(53) For an excellent discussion of this issue, see Adrienne Asch, Lawrence O. Gostin, and Diann M. Johnson, "Respecting Persons with Disabilities and Preventing Disability: Is there a Conflict?", in The Human Rights of Persons with Intellectual Disabilities: Different But Equal, eds. Stanley S. Herr, Lawrence O. Gostin, and Harold Hongju Koh (New York: Oxford University Press, 2003), pp. 319-46.

(54) People with Disability Australia, Australian Federation of Disability Organisations, and (Australian) National Association of Community Legal Centres, Contribution in Relation to Articles 1 to 15, Fourth Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Rights and Dignity of Persons with Disabilities, 24 Aug. 2004, at <> [1 Aug. 2009].

(55) Fourth Session of the Ad Hoc Committee on the United Nations Convention on the Rights of Persons with Disabilities, Daily Summary of Discussions Related to Article 8, Right to Life, Volume 5, No. 3, 25 Aug. 2004, Afternoon Session, at < rights/ahc4sumart08.htm> [8 Aug. 2009].

(56) See, for example, Carmel Shalev, "China to CEDAW: An Update on Population Policy", Human Rights Quarterly 23 (2001): 119-47 (discussing interactions between the Chinese government and the Committee on the Elimination of Discrimination against Women).

(57) See generally Susan Greenhalgh, Just One Child: Science and Policy in Deng's China (Berkley: University of California Press, 2008); and Peng Xizhe, "Is it Time to Change China's Population Policy?", China: An International Journal (2004): 135-149.

(58) Thomas Scharping, Birth Control in China 1949-2000: Population Policy and Demographic Development (London and New York: RoutledgeCurzon, 2003).

(59) Peng Xizhe, "Is it Time to Change China's Population Policy?", Table 1.

(60) Thomas Scharping, Birth Control in China 1949-2000: Population Policy and Demographic Development, p. 332.

(61) Susan Greenhalgh, Just One Child: Science and Policy in Deng's China, pp. 326-7; and Thomas Scharping, Birth Control in China 1949-2000: Population Policy and Demographic Development, pp. 330-42.

(62) Peng Xizhe, "Is it Time to Change China's Population Policy?", pp. 139-40.

(63) Joanna McMillan, Sex, Science, and Morality in China (London and New York: Routledge, 2006), pp. 73-4.

(64) Peng Xizhe, "Is it Time to Change China's Population Policy?", pp. 140-2.

(65) See generally Thomas Scharping, Birth Control in China 1949-2000, pp. 136-49.

(66) See, for example, Information Office of the State Council of the People's Republic of China, White Paper: Human Rights in China (November 1991), at <> [15 May 2009].

(67) Joanna McMillan, Sex, Science, and Morality in China, pp. 73-4.

(68) Qiu Renzong, "Is China's Law Eugenic?" The UNESCO Currier (1999), at < dossier/intro07.htm> [20 Apr. 2009].

(69) Linda Johnson, "Expanding Eugenics or Improving Health Care in China: Commentary on the Provisions of the Standing Committee of Gansu People's Congress Concerning the Prohibition of Reproduction by Intellectually Impaired Persons", Journal of Law and Society 24 (1997): 199, 209-10, 221 (with English translation of the Gansu legislation appended to the article).

(70) Ibid, p. 221 (citing English translation of Articles 3-5 of the Gansu legislation).

(71) Ibid, p. 204. See also Frank Dikotter, Imperfect Conceptions, p. 174.

(72) Frank Dikotter, Imperfect Conceptions, pp. 172-3.

(73) Linda Johnson, "Expanding Eugenics or Improving Health Care in China", p. 203.

(74) Ibid, p. 222.

(75) Law of the People's Republic of China on Maternal and Infant Health Care, Adopted at the Tenth Meeting of the Standing Committee of the Eighth National People's Congress on 27 Oct. 1994, promulgated by Order No. 33 of the President of the People's Republic of China and effective as of 1 June 1995 (hereinafter MIHCL), at < Laws_Regulations/1478.jsp> [15 Aug. 2009].

(76) Linda Johnson, "Expanding Eugenics or Improving Health Care in China", p. 204. See also Thomas Scharping, Birth Control in China 1949-2000, p. 76.

(77) MIHCL, Art. 12.

(78) MIHCL, Art. 9.

(79) MIHCL, Art. 10.

(80) Joanna McMillan, Sex, Science, and Morality in China, p. 72.

(81) Ibid.

(82) MIHCL, Art. 11.

(83) Joanna McMillan, Sex, Science, and Morality in China, pp. 72-3.

(84) Ibid., p. 73.

(85) Ibid., pp. 71, 73.

(86) Joanna McMillan, Sex, Science, and Morality in China, p. 73; see also MIHCL, Art. 12.

(87) "Reinstate Compulsory Pre-marriage Medical Tests", China Daily, 22 Nov. 2006, at < 2006-11/22/content_739429.htm> [15 May 2009] (reporting on information provided by the Vice Minister of Health, Jian Zuojun).

(88) The requirements for marriage registration may vary, depending on the location. See Regulations on Marriage Registration of the People's Republic of China, approved by the State Council on 31 Dec. 1985 and promulgated by the Civil Affairs Ministry on 15 Mar. 1986 (stating that: "[i]n localities requiring physical checkups prior to marriage, the parties to a marriage shall undergo remarriage physical checkups at designated medical or healthcare facilities and produce the remarriage physical checkup papers at the marriage registration administrative office").

(89) "Reinstate Compulsory Pre-marriage Medical Tests", China Daily, 22 Nov. 2006. See also Joanna McMillan, Sex, Science, and Morality in China, p. 73 (describing other press reports).

(90) National Population and Family Planning Commission, "Birth Defects in Spotlight", 19 Dec. 2008, at < articleid=090601105142546641> [1 June 2009].

(91) National Population and Family Planning Commission, "China to Provide Free PrePregnancy Health Screening", 16 Jan. 2009, at < articleid=090505105547500790> [1 June 2009].

(92) Ibid.

(93) MIHCL, Art. 18.

(94) MIHCL, Art. 19.

(95) See generally Baoqi Su and Darryl R. J. Macer, "Chinese People's Attitudes Towards Genetic Diseases and Children with Handicaps", Law and Human Genome Review 18 (2003): 191-210 (reviewing several studies and reporting on interviews with 36 respondents from four regions in China).

(96) Ibid. (comparing results with earlier opinion surveys in China, Hong Kong, and Singapore).

(97) Frank Dikotter, Imperfect Conceptions, pp. 172-3.

(98) Ibid.

(99) Ibid.

(100) McMillan, Sex, Science, and Morality in China, p. 74.

(101) Death by Default: A Policy of Fatal Neglect in China's State Orphanages (1996), at < 01/death-default> [1 Aug. 2009].

(102) The documentary can be viewed as part of Channel Four's archives, at < the_dying_room.html> [1 June 2009].

(103) See, for example, Information Office of the State Council of the People's Republic of China, The Situation of Children in China (Apr. 1996, Beijing), at Appendix: "The Description and Accusations About China's Children's Welfare Institutions by Britain's Channel Four and the Human Rights Watch/Asia Do Not Hold Water", at < whitepaper/13appendix.html> [1 Feb. 2009].

(104) "In China's Orphanages, A War of Perception", New York Times, 21 Jan. 1996.

(105) See, for example, Information Office of the State Council of the People's Republic of China, White Paper: Human Rights in China (Nov. 1991), at < 7/index.htm> [15 May 2009].

(106) Information Office of the State Council of the People's Republic of China, National Human Rights Action Plan of China 2009-10, issued 13 Apr. 2009, at III.2.4, at < 13/content_17595407.htm> [20 May 2009].

(107) Ibid., at III.3.8.

(108) Ibid., at III.5.2.

(109) Population and Family Planning Law of the People's Republic of China, Adopted at the 25th Meeting of the Standing Committee of the Ninth National People's Congress, 29 Dec. 2001, at Art. 35 (prohibiting identification of gender for nonmedical purposes and sex-selective termination), at < Laws_Regulations/1489.jsp> [16 May 2009]. See also Measures for Implementation of the Law of the People's Republic of China on Maternal and Infant Care (Promulgated by Decree No. 308 of the State Council of the People's Republic of China on 20 June 2001, and effective as of the date of promulgation), at < 24/content_25746.htm> [1 Feb. 2009].

(110) Adrienne Asch, Lawrence O. Gostin, and Diann M. Johnson, "Respecting Persons with Disabilities and Preventing Disability: Is There a Conflict?", p. 335.

(111) Ming Wan, "Human Rights Lawmaking in China: Domestic Politics, International Law, and International Politics", Human Rights Quarterly 29 (2007): 727-53. Professor Wan concludes that China's engagement with international human rights law has had some positive impact on domestic policies but that Beijing views the treaties primarily as a tool of foreign policy.

Carole J. Petersen is Director of the Spark M. Matsunaga Institute for Peace and Conflict Resolution and Associate Professor at the William S. Richardson School of Law, University of Hawaii at Manoa. She was formerly Associate Professor and Director of the Centre for Comparative and Public Law at the University of Hong Kong.

The research for this article was supported by the William S. Richardson School of Law. The author also thanks her research assistant, Ms. Christie Trenholme, and Mr. Yutian Ling, the Ropes and Gray Visiting Fellow at the Matsunaga Institute for Peace.
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Author:Petersen, Carole J.
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Date:Mar 1, 2010
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