Are men victims of forced abortions?

Do Chinese men whose partners are forced to abort deserve asylum? The courts disagree.


Tracy Clark-Flory
May 10, 2008 12:30PM (UTC)

At age 20, Yi Qiang Yang married his 17-year-old wife in a traditional ceremony; they were still years away from meeting China's age requirement for legal marriage. His wife soon became pregnant, but in the middle of her third trimester, local authorities forced her to have an abortion. Another man, Zen Hua Dong, says local authorities threatened him with sterilization and forced his fiancée to have two abortions. Both men applied for asylum in the United States, but were denied because they were not legally married, reports the Associated Press. Now, the men are appealing the Supreme Court.

Yang was actually told by an appeals court in Atlanta that "legal marriage reflects a sanctity and long-term commitment that other forms of cohabitation simply do not." Wait, so, raising a child with someone you've wed in a traditional ceremony -- because, remember, you're too young to legally marry -- doesn't reflect a "long-term commitment"? Interestingly, in 2004, a U.S. court of appeals ruled that the "refusal to grant asylum to an individual who cannot register his marriage with the Chinese government on account of a law promulgated as part of its coercive population control policy, a policy deemed by Congress to be oppressive and persecutory, contravenes the statute and leads to absurd and wholly unacceptable results." Regardless, in Dong's case, a New York appeals court ruled that even legal marriage is not enough to earn asylum.

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U.S. courts may disagree with how to respond to these requests, but one thing is not up for debate: Chinese women who are forced to have abortions have a legal right to seek asylum. In 1996, Congress passed section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act, which reads, "[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization ... shall be deemed to have been persecuted on account of political opinion...." But, in a landmark case, the Board of Immigration Appeals ruled that "the husband of a sterilized wife can essentially stand in her shoes and make a bona fide and non-frivolous application for asylum based on problems impacting more intimately on her than on him." Unfortunately, the BIA didn't fully detail its grounds for extending refugee status to a partner -- so, the courts are left to sort it out. In some cases, marriage has been discarded as a determining factor because the couples were not allowed to legally marry in the first place.

Many of these men are actively intimidated and threatened by authorities; and though it's the woman who sustains the physical trauma of a forced abortion (sometimes late-term and without anesthesia), in many cases, the man shares in the emotional trauma. This doesn't speak to the practicalities of determining on a case-by-case basis a man's commitment to his partner, the psychological toll it has on him, or the level of political persecution he personally experienced -- but New York University law professor Samuel Estreicher, Dong's lawyer, sums up the situation succinctly: "The Chinese government is not just going after the pregnant woman, it is going after the unit, the couple."


Tracy Clark-Flory

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