Daniel Burgess was a student in Professor Birdsong’s Refugee and Asylum course last spring. He has written an interesting paper that derives from his examination and research concerning China’s one child policy. Mr. Burgess addresses the issue of whether an unborn child should be granted asylum. There is an ongoing debate about whether a fetus is a person. Why not read it and learn something. Mr. Burgess is a good creative writer and thinker.
Life, or Something Like It
A Reflection on China’s One-Child Policy and its Effects on the Unborn
Daniel W. Burgess, Jr.
April 22, 2010
Introduction
“Give me your tired, your poor, your huddled masses…” and your unborn. [1] There are many unfortunate individuals living in parts of the world who are “yearning to breathe free” from persecution. But there is a persecuted class that is yearning for a chance to breathe its first natural breath: the unborn. Worldwide, laws tend to view the unborn as merely a fetus and not as a human life. They do not share the same rights as a viable human living outside his or her mother’s womb. They are viewed as less than human by the laws of man.
This paper addresses whether an unborn child should be granted asylum. There is an ongoing debate about whether a fetus is a person. The pro-choice camp would argue that a fetus is not afforded the protection of law until it is a viable life, while those in the pro-life camp would argue that a fetus is a person from the moment of conception. The reality is that until a fetus is universally recognized as a person, an unborn child will continue to be the subject of a form of persecution that strips their life away before they were ever given the chance to live it.
This author initially became interested in immigration and refugee law while visiting Hope Community Center in Apopka, Florida, during the summer of 2009. I was enrolled in a social justice seminar that was discussing immigration reform. Hope Community Center is run by the Sisters of Notre Dame de Namur, a Roman Catholic religious order. In 2009, the Sisters were named Orange County’s Citizen’s of the Year for their work with the poor and migrant community in Central Florida. Their mission is to strengthen and support the working poor and immigrant communities of Central Florida through faith, advocacy, education, leadership and economic development programs. [2]
During my visit, I was able to meet with many immigrants who came to the United States to escape the horrible living conditions of their homeland in search of a better opportunity and a chance at achieving the American dream. Many of the immigrants were illegal aliens who were brought here by their parents. They are now attending public schools and want to continue their education beyond high school, but are unable due to their status. Their heartfelt stories of the hardships they faced back home and the pain they experienced trying to cross the border would touch the heart of any American, regardless of political opinion.
Another experience that altered my perspective on immigration and refugee law was helping Haitian refugees applying for Temporary Protective Status (hereafter referred to as TPS) in the wake of the devastating earthquake that ravaged Haiti on January 12, 2010. The President granted Haitian refugees living in the United States on or before January 12, 2010, TPS for up to eighteen months. Orlando, Florida, has one of the largest Haitian communities in the United States. Barry University School of Law, located in Orlando, hosted a TPS fair for Haitian’s seeking to apply for this status.
The application fair turned out many who were seeking protective status. One gentleman in particular, had a profound affect on my conscience and his positive attitude touched my heart. He had been in America for several years. Since he was in this country illegally, he could not work and was unable to support himself. The only thing keeping him off the streets was the care and support he received from the St. Francis House, a Catholic charity that shelters and provides rehabilitation for the poor and homeless. [3] All that he owned was carried in a pillow case. The little bit of documentation he had told the story of a man who lived a hard life. He had been convicted of felony drug possession charges on four separate occasions.
There is a litany of rules and regulations governing TPS and whether an applicant is eligible for this status. One of the requirements is that an applicant must never have been convicted of a felony. [4] I was afraid to inform this man that he must be denied TPS due to his past felony charges; I was afraid of how he might react. I was also afraid to break his heart because as was clearly evident, his life had been full of disappointment and a sense of hopelessness. But when I sat down across from the applicant and told him that he was ineligible, he humbly spread out his arms and held my hands. With a smile he thanked me for doing what I could to help him. He then proceeded to put all that he owned back into his pillow case, and walked to the bus stop to return to his temporary home.
Before visiting Hope Community Center and working with Haitian refugees, I perceived the issue of immigration as a numbers game. I essentially looked at immigrants as statistics, instead of human beings. Coming face to face with real stories not only made me appreciate how lucky I am to have been born in a country with so much freedom and opportunity, it made me realize that the issue of immigration reform affects real people. There is a human level to this divisive political matter that I fear so many fail to understand. My original position on immigration, the need for comprehensive reform, and heightened border security was not affected by this encounter. However, my mind was opened to the understanding that immigrants are people too, longing for a chance to give their family the same opportunities that American’s all too often take for granted.
Today, this author is a staunch advocate for human rights. At the age of 18, I ran for and was elected to the Zephyrhills City Council, becoming the youngest elected official in the State of Florida. While on the council, I campaigned against pro-choice policies and backed legislation that would have restricted the ability to abort an unborn child. Without a doubt, my passion for human life stems from the values with which my faith and family instilled in me from a young age. I was taught to respect all walks of life and that no one person was more entitled to certain rights than the next.
The most fundamental of all human rights is the right to life. I believe that the right to life begins on the day of conception until natural death. In conjunction with this right is the right to freely raise a family without interference from outside influences, such as coercive population control policies. The 1968 United Nations International Conference on Human Rights asserted, “The right of an individual to determine freely and responsibly the number and spacing of children constitutes a basic human right to freedom of reproductive choice.” [5]
In response to rapid population growth, the People’s Republic of China (hereafter referred to as PRC) implemented a now longstanding family planning policy in 1978 and began applying said policy to children born in and after 1979. [6] The policy limits parents to one child per household. Enforcement of the One-Child Policy ranges from the forced sterilization of violators to forced abortions on pregnant mothers. An example of PRC Propaganda promoting the policy reads, “For a prosperous, powerful nation and a happy family, please use birth planning.” [7]
In order to protect the rights of families and the unborn from the oppression of coercive family planning policies, the international community must first recognize a fetus as a person. Only then, will society come to understand the gravity of the persecution these policies inflict upon parents and their unborn children. Recognizing a fetus as a person would present a new argument that the right of a family to produce and sustain a life is restricted and forcibly denied through the systematic murder of an unborn child by invading the intimate privacy of the mother. Imagine the paradoxical situation a married couple in the PRC is faced with: the desire to freely raise a family and the fear of punishment for violation of that policy. This is a cutting-edge issue that merits international attention. As Pope John Paul II once said, “The cemetery of the victims of human cruelty in our century is extended to include yet another vast cemetery, that of the unborn.” [8]
Refugee and Asylum Law
Refugee law is seen as marking out privileges available to a subset of qualified migrants, owing to their particular suffering or danger—privileges that trump the normal law of migration control. [9] A refugee is a person residing outside his or her country of nationality, who is unable or unwilling to return because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a political social group, or political opinion.” [10]
- International Policy
The right to asylum applies to all. Each and every person living on planet Earth could potentially qualify for asylum. In 1948, the U.N. General Assembly passed Article 14, paragraph 1, of the Universal Declaration of Human Rights which stated, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” [11]The United Nations 1951 Convention relating to the rights of refugees afforded refugees the dual protection of nonrefoulement and asylum. [12] It is the fundamental legal doctrine pertaining to refugees.
The 1951 Convention defines refugees as those who are outside of their country and cannot return to it, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. [13]The Convention guarantees that (1) no refugee may be returned to a land where his or her life or freedom would be threatened (nonrefoulement), and (2) those refugees who have been lawfully admitted to the receiving state are guaranteed equal treatment in exercising enumerated civil and political rights.[14] The United Nations later ratified the 1967 Protocol to expand the definition of asylum to be more inclusive. [15] Approximately one hundred and fifty of the world’s two hundred countries have signed the 1951 Convention and its 1967 Protocol. [16]
- United States Policy
The United States did not sign the Convention, but did sign the Protocol, becoming subsequently bound by the provisions contained within the Convention. However, it wasn’t until over twenty years later, that Congress passed the Refugee Act of 1980 which brought substandard U.S. law up to par with international policy. [17]U.S. policy on nonrefoulement states that, “The Attorney General may not remove an alien to a country if the alien’s life or freedom would be threatened because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” [18]This language is extremely similar to the nonrefoulement provision of the 1951 Convention. The Refugee Act of 1980 clarified existing U.S. policy on asylum, and specified that one seeking asylum must have a “well founded fear” of persecution. [19]
Nonrefoulement, or withholding, requires that the individual’s “life or freedom would be threatened.” [20] To be withheld from deportation, U.S. policy requires persecution be “more likely than not.” [21]A “well founded fear” of persecution provides the applicant with an easier burden to meet than the “more likely than not” requirement of nonrefoulement. [22] Asylum in the U.S. may be terminated and refugees deported if circumstances change so that there is no longer a threat of persecution. [23]
China’s One-Child Policy: A Brief Overview
Aristotle once said, “Neglect of an effective birth control policy is a never-failing source of poverty which, in turn, is the parent of revolution and crime.” [24] As the world becomes more populated, some nations have already undertaken the responsibility of regulating the quality of life of its people by implementing varying birth control policies. [25] Whether a birth control policy is effective is the subject of much debate. If effectiveness is measured by a decrease in a nation’s annual birthrate alone, one could argue that China’s One-Child Policy works. By 1993, the PRC had prevented over 100 million couples from having a second child. [26] In 2007, the first systematic study of China’s One-Child Policy revealed that the policy has actually been extremely effective. [27] Since its implementation, China has managed to successfully suppress the average fertility rate of a household to 1.5 children per couple. [28]
The PRC implemented the Once-Child Policy in 1979. [29] China was experiencing a surge in population growth. In an effort to curtail this growth, the policy limits couples to one child. [30] China was concerned for its infrastructure and how it could sustain and support over one billion people. [31] The goal of the One-Child Policy was no population growth by the year 2000. [32]
The PRC employs coercive techniques to enforce this policy. The PRC’s policy is regarded as “the most aggressive anti-natalist population control policy in the world.” [33]Anti-natalist policies seek to decrease population size. [34] Local officials are charged with enforcing the policy within their respective communities. [35] Although the central government of the PRC denies promoting any abusive techniques, “Local officials have substantial power with which they can abuse to meet their targets.” [36] Coercive economic incentives to comply with the policy include monthly stipends, preferential medical and educational benefits, and larger living quarters. [37] Coercive economic disincentives for not complying with the policy include fines, job demotions, and denial of social services. [38]
The most troubling examples of coercion for non-compliance include forced sterilizations, forced insertion of intrauterine contraceptives, and forced abortions. [39] Families are subjected to “intense pressure” from within their community, as well the PRC, to comply with the policy. [40] If that was not disturbing enough, over 13 million people are employed to oversee the implementation of the policy and the PRC has been reported to publicly publish the menstrual cycles of women within their community, further adding to the pressures of compliance. [41]
Since the implementation of the One-Child Policy, America has seen a rise in the influx of Chinese refugees seeking asylum. They are fleeing the persecution wrought by the coercive government policy. Ironically, the PRC defends its policy by arguing without control, the country’s population growth would cause a “massive exodus of refugees.” [42]
The United States has recognized countless applicants’ accounts of coercive persecution based on China’s One-Child Policy as credible. For example, in Chen v. Carroll, the Chinese government arrested Chen’s wife, who was 5 months pregnant with their third child, and forced her to have an abortion. [43] The government fined Chen for having had a second child and threatened to starve his family if he did not undergo surgical sterilization. [44] Chen underwent sterilization because he was concerned for his family and his job. [45] If Chen did not pay the fine, the government threatened to sterilize his wife and Chen would not be allowed to work. [46] Chen later fled to the United States, but was denied asylum based on then U.S. policy. [47]
In De Quan Yu v. United States AG, Yu said that the Chinese government persecuted him by forcing his wife to insert an intrauterine device, abort her pregnancy, undergo sterilization, and pay a fine. [48] In Hao Zhu v. Gonzales, family planning officials used excessive force while questioning Zhu as to the whereabouts of his pregnant girlfriend. [49]At one point, they even beat Zhu with a brick. [50]Zhu’s girlfriend was eventually discovered and forced to abort her pregnancy. [51]
In Guang Lin-Zheng v. AG of the Untied States, Lin-Zheng’s wife was forced to have an intrauterine device inserted after the birth of their first child. [52] The Lin-Zheng’s arranged for a private doctor to remove the device and Lin-Zheng’s wife became pregnant once more. [53] Family planning officials forced his wife, who was six months pregnant, to abort the child. [54] In Chang Hao Lin-Lin v. AG of the United States, Lin-Lin argued that he should be granted asylum based on the fact that he is the spouse of a woman who had been forced to have an intrauterine device inserted and was subjected to two prior forced abortions for violating the One-Child Policy. [55]
The PRC will even persecute those who help others act in opposition to the policy. In Yan Yan Lin v. Holder, Lin worked in a hospital and assisted pregnant woman. [56] One day, a woman Lin knew was brought to the hospital by family planning authorities to undergo a forced abortion for violating the policy. [57] When Lin helped the woman escape, family planning authorities began questioning Lin about her involvement, causing Lin to flee China. [58]
In each of the above cases, the United States acknowledged as credible, the applicants’ testimony as to active government involvement in forced abortions. The rule concerning credibility holds that, “If the testimony of the claimant is credible, corroboration is not required to prove a well founded fear of persecution. Thus, the claimant must know his or her case, must be truthful about his or her case, and testify in such a way to make the record show that the claimant believes his or her own case. There must be extensive preparation.” [59] During a lecture series, former immigration attorney and Associate Dean of Barry University School of Law, Leonard Birdsong, reminded his students that “asylum cases are strongly ‘fact driven’ and they must present a good story,” to be granted asylum. [60]
Despite mounting evidence to the contrary, the PRC has “stressed repeatedly that it does not condone forced abortions or sterilizations.” [61]Although effective as an anti-natalist policy, the PRC should show more concern for individual freedom and respect for human life. Specifically, the PRC should prohibit the use of coercive physical procedures like forced abortions.
International Reaction to China’s One-Child Policy
The international community has responded in various ways to the PRC’s coercive family planning policies. Most notably, the United Nations and the United States have collectively and individually ratified policies that either directly or indirectly address the issue of persecution based on active government family planning policies.
- United Nations
Established in 1950, the United Nations High Commission for Refugees (UNHCR) is “mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State.” [62] The Commission protects refugees and those persecuted across the globe.
The UNHCR provides an excellent database compiling international policies and current events affecting refugee law. [63]This database, Refworld, is regarded as, “The leading source of information needed for making quality decisions on refugee status.” [64]Refworld publishes legal opinions, statistics, government policies and research regarding China’s One-Child Policy. The UNHCR is the watchdog over international human rights and applies to any person who is considered a refugee under the U.N. definition. [65]
In 1989, the United Nations ratified the Convention on the Rights of the Child and its policy came into effect in 1990. [66] The Convention is, “A universally agreed set of non-negotiable standards and obligations. These basic standards, also called human rights, set minimum entitlements and freedoms that should be respected by governments. They are founded on respect for the dignity and worth of each individual, regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth status, or ability and therefore apply to every human being everywhere.” [67]
The Convention requires that governments act in the best interest of the child. [68] It guarantees that every child has the right to life and obliges every government to allow parents the ability to exercise their parental rights and responsibilities. [69] States are obligated to “move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children.” [70] The Convention does not specifically mention the unborn as a protected class of people; however, it does mention “birth status” as a respected dignity and the Convention seeks to provide every child the right to life. [71]
“Birth status” has been interpreted by certain signatories as including the unborn. The Holy See, Argentina and Ecuador, for example, expressly stated that they are signing the Convention because it was their view that it was drafted to include the unborn as a protected class of children. The Holy See’s interpretation was, “The Convention represents an enactment of principles previously adopted by the United Nations, and once effective as a ratified instrument, will safeguard the rights of the child before as well as after birth, as expressly affirmed in the ‘Declaration of the Rights of the Child’ [Res. 1386 (XIV)] and restated in the ninth preambular paragraph of the Convention.” [72]
Argentina stated, “Concerning article 1 of the Convention, the Argentine Republic declares that the article must be interpreted to the effect that a child means every human being from the moment of conception up to the age of eighteen.” [73]Ecuador’s position on the Convention was, “In signing the Convention on the Rights of the Child, Ecuador reaffirms…that it is especially pleased with the ninth preambular paragraph of the draft Convention, which pointed to the need to protect the unborn child.” [74] Surmising their express assent conditioned upon interpreting the Convention as protecting the unborn, one would assume that these nations would not have been signatories but for the Convention protecting the unborn.
Shamefully, the United States is a signatory to the Convention; however, we have yet to ratify the Convention. The only other nation to not ratify the Convention is Somalia. The United States pushed for the passage of the Convention but would not ratify it in its current form due to potential conflicts between the Convention and the U.S. Constitution. Supreme Court precedent holds that federal and state jurisdiction is limited over the child. That instead, the relationship between the parent and the child is supreme to any government intervention. [75]
- United States
United States law regarding asylum for Chinese refugees fleeing persecution from coercive family planning policies had long been established in Matter of Chang. [76] Changheld that, “An asylum claim based solely on the fact that the applicant is subject to this policy must fail. An individual claiming asylum for reasons related to this policy must establish, based on additional facts present in his case, that the application of the policy to him was in fact persecutive or that he had a well founded fear that it would be persecutive on account of one of the five reasons enumerated in section 101(a)(42)(A).” [77]
In other words, an alien seeking asylum based upon coercive population control practices of the PRC must produce evidence that the feared governmental action actually arises not for reasons of population control, but specifically because of the alien’s political opinions (or another reason protected by the Act). [78] If the PRC took action or threatened to take action against the asylum applicant merely to enforce its population control policy, the asylum claim must fail. [79] An asylum applicant must demonstrate that any action taken by the PRC against him “arises for a reason other than general population control.” [80]
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. [81] The Act essentially overturned the precedent of Chang, and amended United States law to specifically identify its position on persecution based on family planning policies. Section 601 of the Act provides, “A person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” [82]
The Act granted asylum to any refugee who has been persecuted or has a well founded fear of persecution based on coercive family planning policies under political opinion. An applicant no longer has to claim persecution on account of his political opinion rather than the government’s mere enforcement of the policy. It is now sufficient to show that one has been persecuted by active government enforcement of said policy, regardless of one’s political opinion.
The United States and the Unborn
Perhaps the best resource defining the United States’ position on the unborn is found in the landmark abortion case, Roe v. Wade. [83] Roe and its counterpart, Planned Parenthood v. Casey, hold that a state has a legitimate interest at the outset of a pregnancy in protecting the health of a woman and the life of a fetus that may become a child. [84] This interest then becomes a compelling interest after the unborn child is a viable life. [85]Both Roeand Casey define a viable life to be “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb so that independent existence of second life can in reason and in all fairness be the object of State protection that now overrides the rights of women.” [86]
Concurring with the majority opinion in Roe, Justice Harry Blackmun argued that the “Controversy over the meaning of our nation’s most majestic guarantees frequently has been turbulent. Abortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly. But those disagreements did not then and do not now relieve us of our duty to apply the Constitution faithfully…The states are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies.” [87] Based on this excerpt and the express language from Roeand Casey, the United States does not recognize a fetus as a person from the moment of conception and leaves the determination of life up to a vague reference to viability. Viability has since become the subject of much debate and varying interpretation.
A more focused precedent that has a strong correlation to the current issue of whether an unborn child could be granted asylum, is Wixtrom v. DCF. [88] This was a case out of Florida’s 5th District Court of Appeals that dealt with whether Court had the authority to appoint a fetal guardian pursuant to Florida’s guardianship statutes. [89] The Court ultimately held that Florida statutes do not provide for the appointment of a guardian for a fetus. [90] The Court reasoned that a fetus must be considered a person to be appointed a guardian. [91] The Court said, “We find no Florida statute or case law that has determined a fetus to be a person.” [92]
The Court then went on to cite precedent from other jurisdictions holding that a fetus is not a person under Florida law, “The Florida Supreme Court declined to rule that a fetus is a ‘person’ within the meaning of the Florida Wrongful Death Act and the Fourth District declined to apply a child abuse statute in a case involving a fetus.” [93] Under current United States law, if a fetus is not recognized as a person and cannot be appointed a guardian, a fetus would therefore be denied the right to asylum.
Proposed Solutions
In order for an unborn child to be granted the same rights that viable humans possess, society must first be willing to recognize a fetus as a person. Laws must be amended to reflect this updated view on life and when it starts. The use of modern science and the facts with which it can identify the progress of life in the mother’s womb bolsters the credibility of the argument that a fetus is a person from the moment of conception. Science is in a much better position to carry the weight of this movement in the long run, as religious arguments are not seen by all as valid cries for legitimate justice, but rather as impassioned philosophical views that are not grounded on any factual merits.
This author happens to hold strong religious views on the issue of the unborn and abortion. I am staunchly pro-life; however, I recognize that in order to win the hearts and minds of both skeptical and secular members of society alike, validation through science is the key to protecting the rights of the unborn. In recent years, science has begun to expose the truth behind fetal progression. Dr. William J. Larsen, author of Essentials of Human Embryology, states in his book, “The extreme speed with which both our understanding of human biology and our clinical practices are advancing affects a new category of patient—the unborn fetus.” [94]
Modern science has revealed to us that from the day of conception, all human chromosomes are present and accounted for. [95] By the twenty second day, the child’s heart begins to beat. [96] By week five, eyes, legs and hands begin to develop and by week six, lips and fingers are present. [97] By week eight, every organ is in place and fingerprints begin to form. [98] It is worth noting that no two human beings have identical fingerprints, and these prints are distinctive to each individual living person. [99] The child can be identified and distinguished by these prints. [100] By week ten, an unborn child can turn his or her head. [101] Perhaps most amazing is that an unborn child can have a dream while sleeping by week seventeen. [102]
Science has also successfully studied an unborn child’s response to pain. Studies have shown that unborn children can feel pain as early as twenty weeks. [103] By the eighteenth day, the brain begins to form and by the twentieth week, all of the anatomical components constructing the human nervous system are in place and functional. [104]University of Toronto Neurologist, Dr. Paul Ranalli, says that at, “At 20 weeks, the fetal brain has the full complement of brain cells present in adulthood, ready and waiting to receive pain signals from the body, and their electrical activity can be recorded by standard electroencephalography.” [105] Further, Professor of Neurosurgery at Case Western Reserve University, Dr. Robert J. White, believes that at twenty weeks an unborn child, “is fully capable of experiencing pain…Without question, abortion is a dreadfully painful experience for any infant subjected to such a surgical procedure.”[106]
Clearly, science has lent the pro-life movement some very compelling evidence, starting with the day of conception. The authors of Williams Obstetrics, a renowned guide for doctors working with pregnant women, childbirths and post-natal care, write, “The status of the unborn child has been elevated to that of a patient, who, in large measure, can be given the same meticulous care that obstetricians provide pregnant women.” [107] Unborn children are now considered by medical professionals to deserve the same care and treatment given to any viable human life.
An equally compelling argument for rights of the unborn comes not from science, but from the law. In Wixtrom v. DCF, Judge Robert Pleus wrote a passionate dissenting opinion. [108]Judge Pleus believed that the fetus in question deserved to be recognized as a viable human and should have been appointed a guardian. [109]Judge Pleus argues, “Because the majority concludes that an unborn child is not a person or a minor unless the Legislature says so, I would urge the Legislature to overturn this decision and affirm the fact that an unborn child is a person.” [110]
Judge Pleus goes on to say, “Defining ‘person’ by using terms such as ‘embryo’ or ‘fetus’ is confusing, outdated and meaningless. Such terms cloud the issue of when human life begins. The better view would be for the Legislature to adopt a bright line point in time, and that point in time must be the moment of conception…Sooner or later, as happened when Brown v. Board of Education overturned Plessy v. Ferguson, Roe’s unrestricted abortions will be overturned, and the rights of the unborn will be extended to the moment of conception.” [111]
Once society recognizes a fetus as a person, we may begin to revamp our legal system to protect an unborn child. As science continues to identify signs of human life ever closer to the date of conception, so too should our laws reflect this modern view on life and the rights that coincide with it. The United States would be wise to amend our Constitution to reflect Article 3 of the Guatemalan Constitution which unequivocally states, “The State guarantees and protects human life from the time of its conception, as well as the integrity and security of the individual.” [112]
The Untied States should also ratify the Convention on the Rights of the Child. While state sovereignty is an understandable reservation and defending the rights of the parents to freely raise their children is laudable, the need for international unification on the rights of the child is insurmountable. Since claims for asylum are very fact intensive and are taken on a case by case basis, recognizing a fetus as a person will lend more credence and credibility to granting asylum to those who fear persecution under coercive family planning policies, such as that of the PRC.
Conclusion
As Judge Pleus so eloquently argued for the rights of the unborn to be appointed a fetal guardian, so too should the unborn have the right to asylum under United States immigration laws. In his dissent, Judge Pleus went on to remind each and every one of us that although the solution to recognizing a fetus as a person is grounded in science and the law, our own conscience can be just as persuasive in fighting for the rights of the unborn:
“My concern with the ramifications of the majority opinion compels me to write the following. I have a new grandson. His name is Nicholas. His heart started beating a short time after conception and during the first trimester. At the end of the first trimester, or early in the second trimester, we were able to view a sonogram and determine that Nicholas was a boy. We have pictures of sonograms taken when Nicholas was only fourteen weeks old. You can see his head, his eyes, his hands and feet. You could tell he was alive because he moved his arms and legs. He was so strong you could watch him move his mother’s pregnant belly…Nicholas now lives outside of his mother’s womb, but from the moment of his conception, Nicholas was a human life. If all the judges in the world and all justices on the Supreme Court decided that Nicholas was not a person and merely a fetus until his birth, I would know them blind to reality. Before his birth, Nicholas was alive. Nicholas had identity. Nicholas was a person. Nicholas has been a person since conception. Our rule of law can no longer remain blind to the realities of human life. We now know the baby of J.D.S. is a girl. She is called Baby S. She was born through Cesarean section. Ironically, within a short time after her birth, a guardian was appointed for Baby S. It makes no sense to me that Baby S could have a guardian after the Caesarean but not before. Was Baby S any less human before the surgery?” [113]
Forced abortions not only affect the life of the pregnant mother, they destroy the life of the unborn child. A woman who undergoes a forced abortion will have memories of physical and emotional scars as well as a well-founded fear of persecution. While the woman is still alive and able to relive her persecution, an unborn child will never be given the chance to perceive or fear his or her persecution. Their right to life will be stripped from them before they could ever live it.
In his 1984 State of the Union Address, President Ronald Reagan said, “I know this issue is very controversial. But unless and until it can be proven that an unborn child is not a human being, can we justify assuming without proof that it isn’t? No one has yet offered such proof; indeed, all the evidence is to the contrary. We should rise above bitterness and reproach, and if Americans could come together in a spirit of understanding and helping, then we could find positive solutions to the tragedy of abortion.” [114]
As science and civilization continues to develop and progress, so too should our laws, starting with the recognition of the right to life from the day of conception. Until then, the unborns’ painful cries for relief and protection go unheard as they continue to face the ultimate persecution, death. Because archaic laws continue to neglect their natural rights, the plight of the unborn goes unheard and unanswered. There is nothing more precious than a child. No one has the right to strip the life from another, especially those as innocent as the unborn, who have never had the chance to live. It should be the obligation of the United States and the international community to ensure that all human beings may have the opportunity to live, from conception to natural death.
[1] Emma Lazarus, The New Colossus, 1883. The complete poem is engraved on the Statue of Liberty.
[2] Official Mission Statement of Hope Community Center, available at https://www.offm.org/.
[3] Information about St. Francis House, Inc., available athttps://www.stfrancishousegnv.org/.
[4] See eligibility standards provided in Form I-821, Application for Temporary Protected Status.
[5] UN General Assembly, International Conference on Human Rights Res. 2442 (1968), available athttps://www.unhcr.org/refworld/docid/3b00f05520.html
[6]Kimberly Sicard, Section 601 of IIRIRA: A Long Road to a Resolution of United States Asylum Policy Regarding Coercive Methods of Population Control, 14 Geo. Immigr. L.J. 927 (2000).
[7]Tyrene White, China’s Longest Campaign – Birth Planning in the People’s Republic, 1949-2005 (Cornell University Press, 2006).
[8] Abortion: The Details, available athttps://www.duke.edu/~mkc2/page9.htm. Quoting Pope John Paul II.
[9] David A. Martin, Forced Migration: Law and Policy 4 (Thompson West 2007).
[10] Id. at 9.
[11] Id. at 31.
[12] Id. at 68.
[13] Id. at 69.
[14] See Id.
[15] Id. at 9.
[16] See Id.
[17] Id. at 72.
[18] Id. at 73.
[19] Id. at 77.
[20] See Id.
[21] See Id.
[22] See Id.
[23] See Id.
[24] See supra note 7, quoting Aristotle.
[25] Predominantly China and India.
[26]Sicard, supra note 5, at 2.
[27]Wang Feng, First systematic study of China’s one-child policy reveals complexity, effectiveness of fertility regulation (2007), available athttps://today.uci.edu/iframe.php?p=/news/release_detail_iframe.asp?key=1597.
[28] Id.
[29]Sicard, supra note 5, at 2.
[30] Id.
[31] See Id.
[32] Id.
[33]Reed Boland, Civil and Political Rights and the Right to Nondiscrimination: Popular Policies, Human Rights, and Legal Change, 44 AM. U.L. Rev. 1257, 1260 (1995).
[34]Paula Abrams, Population Politics: Reproductive Rights and U.S. Asylum Law, 14 Geo. Immigr. L.J. 881 (2000).
[35]Sicard supra note 5, at 2.
[36] Id.
[37] Id. at 3.
[38] See Id.
[39] See Id.
[40] See Id.
[41] See Id.
[42] See Id.
[43] Chen v. Carroll, 48 F.3d 1331 (4th Cir. 1995).
[44] Id.
[45] See Id.
[46] See Id.
[47] See Id.
[48] De Quan Yu v. United States AG, 568 F.3d 1328 (11th Cir. 2009).
[49] Hao Zhu v. Gonzales, 465 F.3d 316 (7th Cir. 2006).
[50] Id.
[51] See Id.
[52] Guang Lin-Zheng v. AG of the United States, 557 F.3d 147 (3rd Cir. 2009).
[53] Id.
[54] See Id.
[55] Chang Hao Lin-Lin v. AG of the United States, U.S. App. Lexis 851 (3rd Cir. 2010).
[56] Yan Yan Lin v. Holder, 584 F.3d 75 (2nd Cir. 2009).
[57] Id.
[58] See Id.
[59] Dean Leonard Birdsong, Two Recent Asylum Cases Involving Gender Violence and Homosexual Issues and Their Implications, available athttps://birdsongslaw.com/2008/06/24/two-recent-asylum-cases-and-their-implications/.
[60] See Id.
[61] Martin, see supra note 8, at 101.
[62] UNHCR Mission Statement, available athttps://www.unhcr.org/pages/49c3646c2.html.
[63]Refworld, available athttps://www.unhcr.org/pages/49c3646c4f1.html.
[64]UNHCR on Refworld, available athttps://www.unhcr.org/pages/49c3646c4b2.html.
[65] U.N. General Assembly, Statute of the office of the UNHCR, Res. 428(V) (1950).
[66] United Nations Convention on the Rights of the Child, available athttps://www.unicef.org/crc/.
[67] Id.
[68] See Id.
[69] See Id.
[70] U.N. General Assembly, Convention on the Rights of the Child, General Comment 8(2006), available at https://www.unhchr.ch/tbs/doc.nsf /898586b1dc7b4043c1256a450044f331/6545c032cb57 bff5c12571fc002 e834d/$FILE/G0740771.pdf.
[71] U.N. General Assembly, Convention on the Rights of the Child Res. 1386 (XIV) (1959).
[72] Id. at IV (11), available athttps://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.
[73] See Id.
[74] See Id.
[75] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[76] Matter of Chang, Int. Dec. 3107 (BIA 1989).
[77] Id.
[78] 48 F.3d 1331 (1995).
[79] Id.
[80] See Id.
[81] H.R. Rep. 3610, Illegal Immigration Reform and Immigrant Responsibility Act, Sec. 601 (1996).
[82] See Id.
[83] Roe v. Wade, 410 U.S. 113 (1973).
[84] Id.; see also Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[85] See Id.
[86] See Id.
[87] 410 U.S. 113 (1973) (Blackmun, H., concurring).
[88] Wixtrom v. DCF, 864 So. 2d 534 (5th DCA 2004).
[89] Id.
[90] See Id.
[91] See Id.
[92] See Id.
[93] See Id.
[94] William J. Larsen, Essentials of Human Embryology 317 (Churchill Livingstone, 1998).
[95] Keith L. Moore, The Developing Human (W.B. Saunders Co., 1993).
[96] Id.
[97] Flanagan, The First Nine Months (1965)
[98]Nilsson, A Child is Born (1990); see also The First Nine Months (1965).
[99]Roberts Rugh, From Conception to Birth 217 (Harper & Row, 1971).
[100] Id.
[101] Id.
[102] AMA News (1983), available athttps://www.nrlc.org.
[103] National Right to Life Educational Trust Fund, Pain of the Unborn 1 (2004).
[104] Id.
[105] See Id.
[106] See Id.
[107] F. Gary Cunningham, Williams Obstetrics 151 (20th Ed. 1997).
[108]864 So. 2d 534 (2004) (Pleus, R., dissenting).
[109] Id.
[110] See Id.
[111] See Id.
[112] See supra note 69. When ratifying the Convention, Guatemala made note of Article 3 of their Constitution.
[113] See supra note 107.
[114] President Ronald Reagan, State of the Union Address(1984), available at https://www2.hn.psu.edu/faculty/ jmanis/poldocs/uspressu/SUaddressRReagan.pdf.
