Contesting and Controlling Abortion in China's Courts

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Gender Law Newsletter FRI 2025#1, 01.03.2025 - Newsletter abonnieren

CHINA: PRIVATE LAW

2024

Molly BODURTHA, Benjamin LIEBMAN, Li CHENQIAN and Wu XIAOHAN, «Contesting and Controlling Abortion in China's Courts», Columbia Journal of Gender and Law 2024/1, p. 1–80.

The authors of this article show that, as China has shifted from a 1-child policy to a 3-child policy and now encourages reproduction, men commonly claim, in civil law cases, that they have rights to control the reproductive choices of their women. They namely argue that their wives obtained abortion without their authorization. However, no regulation requires the consent from another person than the women for abortion (p. 15). The Supreme Court of China has clarified in an interpretation that women's unilateral abortion do not entitle their partner to compensatory damages, even if reproductive disputes can serve as grounds for a divorce (p. 16). Nevertheless, the authors of the article show that many of the courts, in these cases, legitimize men's claims and penalize women for their reproductive choices. Therefore, the authors stress that courts can reinforce social and cultural norms even if the law offer a strong protection.
The authors first describes the background (I), namely the history of reproductive rights in China (A) and of the regulation of divorce, where they explain that courts are reluctant to grant divorce and routinely overlook domestic violence (B). They then present their methodology basing on 949 divorce cases (out of 15'152 first-instance divorce cases) involving claims that a women had obtained an abortion without the authorization of her partner (II). They then explain their findings (III). They first describe and analyze the male claims based on “unauthorized” abortion and the reactions of the courts. These claims seeked to obtain emotional and fault-based damages for an abortion, the recovery of bride prices or the custody of children. They also seeked to avoid or obtain a divorce (A). Male partners also invoked “unauthorized” abortion in order to distract from claims of domestic violence or to explain this domestic violence away or to discredit women or to morally blame their spouses. The authors of the article explains that “Courts frequently criticized or attached moral blame to women’s reproductive decisions” (p. 56). The male partners also questioned before the courts other healthcare choices of their spouses like contraception or activities during their pregnancy (B). The authors of the article then explain, inter alia, that in about half of the cases, courts did not adress the males argument of “unauthorized” abortion, and that only 4 % of the courts cited the above mentioned interpretation of the Supreme Court of China (according to which women's unilateral abortion do not entitle their partner to compensatory damages). Even if a small number of courts explicitely rejected this claim, the authors of the article argue that “courts’ failures to reject men’s arguments may [...] serve to reinforce patriarchal social norms and discourage women from asserting their rights” (p. 66; C). Finally, the authors of the article examine the implications of their findings (IV). They find, inter alia, that the “receptivity of courts to men’s claims – sometimes passive, sometimes active – [...] highlights that altering legal norms without changing or challenging social norms may limit the effectiveness of these new legal norms” (p. 72; A). They also identifie three paths for comparative research. They first state that “[o]bserving the role of abortion in legal disputes in China helps to illuminate how private law litigation can serve to regulate reproduction even when the legality of abortion is formally settled by law” (p. 73) and that “[l]egal resolution of the constitutional status of abortion will not eliminate legal conflict over abortion” (p. 74). They then observe similarities with the situation in other countries, for example the USA, where “anti-abortion activists seek to weaponize the civil justice system as a tool for restricting abortion” (p. 74). They also explain that while in western liberal systems, rights can be manipulated to support illiberal goals, in the case examined, “men use rights-based discourse [...] to demand that courts ignore clearly binding law [...]” (p. 77). They observe that “scholarship has yet to examine how individual litigants may [...] use the language of rights to advance or entrench cultural or social norms that marginalize women” (p. 77). Finally, they find that “conflict over gender and reproductive rights will arise and persist regardless of constitutional structure or regime type” (p. 79). In their conclusion, the authors of the article namely state that “the relaxation of birth regulation does not necessarily equate to greater freedom for women” and that “[s]cholars working [...] should be attuned to how legal systems create space for and reinforce men’s claims to control women’s reproductive choices, even when the right to abortion is clear and well-established in law” (p. 80).

Direct to the article (https://journals.library.columbia.edu)