Women-Of-The-World-Laws-And-Policies-Affecting-Their-Reproductive-Lives Monitoring

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WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES Published by: The Center for Reproductive Rights 120 Wall Street New York, NY 10005 U.S.A. ©2005 All rights reserved ©2005 Center for Reproductive Rights and Asian-Pacific Resource and Research Centre for Women (ARROW). Any part of this report may be copied, translated or adapted with permission from the authors, provided that the parts copied are distributed free or at cost (not for profit) and the Center for Reproductive Rights and the co-authoring organization of a particular country chapter are acknowledged as the authors. Any commercial reproduction requires prior permission from the Center. The Center would appreciate receiving a copy of any materials in which information from the publication is used. ISBN 1-890671-29-0 LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 3 Acknowledgments The Center for Reproductive Rights would like to thank its Nik Hussin, executive director, Malaysian AIDS Council; partners in East and Southeast Asia for making this report Dr. Ang Eng Suan, executive director, Federation of Family possible. This report is a product of the hard work and Planning Association Malaysia; Marlina Iskandar, Tenaganita; commitment of many wonderful individuals associated with Florida Sandanasamy, Tenaganita; Wong Shook Foong, law the Asian-Pacific Resource & Research Centre for Women reform officer, Women’s Aid Organisation; Dr. Wong Yut Lin, (ARROW), the Population Research Institute at Renmin associate professor, University Malaya; Tashia Peterson, proj- University of China, the Institute for Social Studies and ect coordinator, National Council of Women’s Organisations Action (ISSA), the Women’s Health Advocacy Foundation (NCWO); Shanthi Thambiah, Gender Studies Unit, Univer- (WHAF), and the Research Centre for Gender, Family, and sity Malaya; Chee Heng Leng; Tan Beng Hui, program offi- Development (CGFED). Many others, too many to name, cer, International Women’s Rights Action Watch-Asia Pacific; have guided and assisted us and our partners during the and Dr. Radhakrishnan for the guidance and support they challenging process of gathering information about national provided to the primary drafters. laws and policies in the countries surveyed. We are incred- In the Philippines, we would like to thank the ISSA and ibly grateful for their cooperation and support. the following members in particular, who devoted consider- This report could not have been completed without the able time and energy to this report: Rodelyn D. Marte, former leadership and guidance of ARROW, Malaysia, which func- coordinator for action research and documentation and also tioned as the regional coordinator of the project. ARROW primary drafter of the country chapter; Vincent M. Abrigo, guided the Center in the selection of partners for the project program coordinator; and Mel E. Advincula, officer-in- and convened two regional meetings to facilitate the research. charge. We would also like to thank Dr. Junice Melgar, execu- We would like to express our deepest thanks to the entire tive director of Likaan, and attorney Beth Pangalangan of the ARROW team for the many roles that they played during this UP College of Law for their support as peer reviewers. project: regional coordinator, primary drafter of the Malaysia In Thailand, we would like to thank the Women’s Health chapter, and contributor to the overview of the report. This Advocacy Foundation, especially Nattaya Boonpakdee, team of people includes Rashidah Abdullah, Syirin Junisya, coordinator for the Women’s Health Advocacy Foundation Saira Shameem, Nalini Keshavraj, Rathi Ramanathan, Nandita (WHAF), for her extended role in drafting the country Solomon, Augustha Khew, Sai Jyothi Racherla Uma Tiruven- chapter. We would like to thank the following researchers: gadam, Shanta Anna, Norlela Shahrani, Khatijah Mohd, Baki, Dusita Phuengsamran, ex-coordinator for Research and Dis- Rosnani Hitam, and Mae Tan Siew Man. semination Desk, WHAF; Sumalee Tokthong, program staff, We would like to acknowledge the invaluable contribu- WHAF; Uthaiwan Jamsuthee, state attorney, Office of the tions made by our partner organizations in China, Malaysia, Attorney General of Thailand; and Dr. Kritaya Archavanit- the Philippines, Thailand, and Vietnam that coordinated proj- kul, consultant, deputy director, Institute for Population and ect research at the national level, undertook the difficult task Social Research, Mahidol University. We would like to thank of gathering information about laws and policies from their Dr. Chalida Kespradit, technical expert, Reproductive Health governments, drafted chapters, and translated local sources Division, Department of Health, Ministry of Public Health, into English. and Vacharin Patjekvinyusakul, justice of the court, Court of In China, we would like to thank the Population Research Appeal Region 1 of Thailand for being peer reviewers. Institute at the Renmin University of China, in particular Zheng In Vietnam, we would like to thank the Research Cen- Xiaoying and Pang Lihua, who were the primary contributors, tre for Gender, Family, and Environment in Development and Dr. Mu Guangzong, who was a peer reviewer of the draft. (CGFED), especially Dr. Le Thi Nham Tuyet, director of In Malaysia, we extend our thanks and appreciation to research; Hoang Ba Thinh, assistant director of research; Pham ARROW, especially Syrin Junisiya, Rashidah Abdullah, and Kim Ngoc and Nguyen Kim Thuy, vice-directors; Nguyen Sai Jyoti for their work on the country chapter. We would Thi Hiep; Pham Thi Minh Hang; and Dang Kim Anh. We also like to thank Datuk Dr. Narimah Awin, director, family would also like to thank the following people for serving as health development, Ministry of Health; Nik Noriani Nik peer reviewers: Dao Xuan Dung, an expert in Reproduc- Badlishah, research manager, Sisters in Islam; Nik Fahmee tive Health and Sexual Health; and Nguyen Thi Hue, ex- PAGE 4 WOMEN OF THE WORLD:

chairwoman for the External Department, Vietnam Radio We are grateful for the pro-bono assistance provided by Broadcasting, who also translated numerous local sources attorneys at Shearman & Sterling LLP; Cleary, Gottlieb, into English. Steen & Hamilton LLP; and Wilmer Cutler Pickering Hale Credit is also due to many of the Center’s dedicated staff. & Dorr LLP. This project was coordinated by Melissa Upreti, who is also supervising editor of the report. Legal Advisers Lilian The Center for Reproductive Rights would like to Sepúlveda and Pardiss Kebriaei both researched and edited thank the following foundations for their generous support various chapters of the report. Legal Assistants Nile Park and of this report: Rachel Gore provided invaluable administrative and editorial The Ford Foundation assistance. Luisa Cabal, international program director, The Wallace Alexander Gerbode Foundation provided input and guidance during the ﬁnal stages of the The William and Flora Hewlett Foundation project. We are also grateful to Legal Fellows Aya Fujimura- The John D. and Catherine T. MacArthur Foundation Fanselow and Elisa Slattery; Senior Editor/Writer Dara The Sigrid Rausing Trust Mayers; Legal Assistant Morgan Stoffregen; and Guan Lan Ying, accountant at the Center. We would also like to thank these individuals who are no longer with the Center but who contributed to portions of the report during their time working with us: Julia Zajkowski, former consulting legal adviser for global projects; Claire Rita Padilla, Dina Bogecho and Sarah Wells, former legal fellows; Melissa Brown, Ritu Gambhir, Rochelle Sparko, Deepah Varma, Lea Bishop, Angelina Fisher, Serena Longley, Jennifer Curran, Camille Mackler, Meghan Rhoad, Jenifer Rajkumar, and Devon Quasha; former legal assistant Ghazal Keshavarzian; former administrative intern Rachel Myer; and, former International Program Director Kathy Hall-Martinez. We are grateful to Neesha Harnam, Vanda Asapahu, and Natalie Nguyen, students at the Yale School of Public Health, for their invaluable assistance in researching foreign sources and fact-checking the Malaysia, Thailand, and Viet- nam chapters. We would particularly like to acknowledge the contribution of Bonnie Wong, who volunteered her time and contributed to several chapters of the report. We would also like to thank Xiaonan Liu at the Center for Human Rights, University of Shanghai, for her generous help. We would like to thank members of our communications department who offered guidance on the layout and design of the report, especially Deborah Dudley and Shauna Cagan. We would like to thank former Center Man- aging Editor Anaga Dalal for her editing and suggestions, particularly on the Overview. We are thankful to Lisa Remez and Sara Shay for copyediting the report. We would also like to express our thanks to Michael Voon in Malaysia for the layout design and imprint services for the printing of the report. LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 5

Table of Contents D. Divorce 54 Parental rights 56 E. Economic and Social Rights 56 ACKNOWLEDGMENTS 3 Ownership of property and inheritance 56 Labor and employment 57 FOREWORD 9 Access to credit 58 OVERVIEW 10 Education 58 F. Protections Against Physical and Sexual Violence 61 Rape 61 1. CHINA 27 Incest 61 I. Setting the Stage: The Legal and Political Domestic violence 61 Framework of China 30 Sexual harassment 62 A. The Structure of National Government 30 Commercial sex work and sex-trafﬁcking 62 Executive branch 30 Sexual offenses against minors 63 Legislative branch 31

B. The Structure of Local Governments 31 2. MALAYSIA 81 Executive branch 31 Legislative branch 32 I. Setting the Stage: The Legal and Political Judicial branch 32 Framework of Malaysia 84 C. The Role of Civil Society and Nongovernmental A. The Structure of National Government 84 Organizations (NGOs) 33 Executive branch 84 D. Sources of Law and Policy 34 Legislative branch 85 Domestic sources 34 Judicial branch 85 International sources 34 B. The Structure of Local Governments 86 C. The Role of Civil Society and Nongovernmental 86 II. Examining Reproductive Health and Rights 34 Organizations (NGOs) A. General Health Laws and Policies 34 D. Sources of Law and Policy 86 Objectives 35 Domestic sources 86 Infrastructure of health-care services 35 International sources 87 Financing and cost of health-care services 36 Regulation of drugs and medical equipment 37 II. Examining Reproductive Health and Rights 87 Regulation of health-care providers 37 A. General Health Laws and Policies 88 Patients’ rights 39 Objectives 88 B. Reproductive Health Laws and Policies 39 Infrastructure of health-care services 89 Regulation of reproductive health technologies 39 Financing and cost of health-care services 90 Family planning 40 Regulation of drugs and medical equipment 91 Maternal health 43 Regulation of health-care providers 91 Delivery of Services 44 Patients’ rights 92 Safe abortion 45 B. Reproductive Health Laws and Policies 92 HIV/AIDS and other sexually transmissible Regulation of reproductive health technologies 93 infections (STIs) 46 Family planning 93 Adolescent reproductive health 49 Maternal health 94 C. Population 50 Safe abortion 96 III. Legal Status of Women and Girls 52 HIV/AIDS and other sexually transmissible A. Rights to Equality and Nondiscrimination 52 infections (STIs) 97 Formal institutions and policies 53 Adolescent reproductive health 98 B. Citizenship 53 C. Population 99 C. Marriage 53 PAGE 6 WOMEN OF THE WORLD:

III. Legal Status of Women and Girls 100 HIV/AIDS and other sexually transmissible A. Rights to Equality and Nondiscrimination 100 infections (STIs) 140 Formal institutions and policies 101 Adolescent reproductive health 142 B. Citizenship 101 C. Population 144 C. Marriage 101 III. Legal Status of Women and Girls 145 D. Divorce 103 A. Rights to Equality and Nondiscrimination 145 Parental rights 104 Formal institutions and policies 146 E. Economic and Social Rights 105 B. Citizenship 147 Ownership of property and inheritance 105 C. Marriage 147 Labor and employment 105 D. Divorce 148 Access to credit 106 Parental rights 150 Education 106 E. Economic and Social Rights 150 F. Protections Against Physical and Sexual Violence 108 Ownership of property and inheritance 150 Rape 108 Labor and employment 151 Incest 108 Access to credit 152 Domestic violence 109 Education 152 Sexual harassment 110 F. Protections Against Physical and Sexual Violence 153 Commercial sex work and sex-trafﬁcking 110 Rape 153 Customary forms of violence 111 Domestic violence 154 Sexual offenses against minors 111 Sexual harassment 155 Commercial sex work and sex-trafﬁcking 155 Sexual offenses against minors 156 3. PHILIPPINES 123

I. Setting the Stage: The Legal and Political 4. THAILAND 169 Framework of the Philippines 126 A. The Structure of National Government 126 I. Setting the Stage: The Legal and Political Executive branch 127 Framework of Thailand 172 Legislative branch 127 A. The Structure of National Government 172 Judicial branch 127 Executive branch 172 B. The Structure of Local Governments 128 Legislative branch 173 C. The Role of Civil Society and Nongovernmental Judicial branch 173 Organizations (NGOs) 129 B. The Structure of Local Governments 174 D. Sources of Law and Policy 130 C. The Role of Civil Society and Nongovernmental Domestic sources 130 Organizations (NGOs) 174 International sources 130 D. Sources of Law and Policy 174 Domestic sources 174 II. Examining Reproductive Health and Rights 131 International sources 174 A. General Health Laws and Policies 131 Objectives 131 II. Examining Reproductive Health and Rights 175 Infrastructure of health-care services 132 A. General Health Laws and Policies 175 Financing and cost of health-care services 133 Objectives 175 Regulation of drugs and medical equipment 133 Infrastructure of health-care services 175 Regulation of health-care providers 133 Financing and cost of health-care services 177 Patients’ rights 134 Regulation of health-care providers 178 B. Reproductive Health Laws and Policies 135 Patients’ rights 179 Regulation of reproductive health technologies 135 B. Reproductive Health Laws and Policies 179 Family planning 136 Regulation of reproductive health technologies 181 Maternal health 138 Family planning 181 Safe abortion 139 Maternal health 183 LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 7

Safe abortion 184 Regulation of reproductive health technologies 216 HIV/AIDS and other sexually transmissible Family planning 217 infections (STIs) 185 Maternal health 218 Adolescent reproductive health 186 Safe abortion 219 C. Population 187 HIV/AIDS and other sexually transmissible infections (STIs) 219 III. Legal Status of Women and Girls 188 Adolescent Reproductive Health 220 A. Rights to Equality and Nondiscrimination 188 C. Population 220 Formal institutions and policies 189 B. Citizenship 190 III. Legal Status of Women and Girls 221 C. Marriage 190 A. Rights to Equality and Nondiscrimination 222 D. Divorce 191 Formal institutions and policies 222 Parental rights 191 B. Citizenship 223 E. Economic and Social Rights 192 C. Marriage 223 Ownership of property and inheritance 192 D. Divorce 223 Labor and employment 192 Parental rights 224 Access to credit 193 E. Economic and Social Rights 224 Education 193 Ownership of property and inheritance 224 F. Protections Against Physical and Sexual Violence 194 Labor and employment 224 Rape 194 Access to credit 226 Domestic violence 194 Education 226 Sexual harassment 195 F. Protections Against Physical and Sexual Violence 227 Commercial sex work and sex-trafﬁcking 195 Rape 227 Sexual offenses against minors 196 Domestic violence 227 Sexual harassment 228 Commercial sex work and sex-trafﬁcking 228 5. VIETNAM 205 Sexual offenses against minors 228 I. Setting the Stage: The Legal and Political Framework of Vietnam 208 A. The Structure of National Government 208 Executive branch 208 Legislative branch 209 B. The Structure of Local Governments 209 Regional and local governments 209 Judicial branch 210 C. The Role of Civil Society and Nongovernmental Organizations (NGOs) 210 D. Sources of Law and Policy 210 Domestic sources 210 International sources 211

II. Examining Reproductive Health and Rights 211 A. General Health Laws and Policies 211 Objectives 211 Infrastructure of health-care services 212 Financing and cost of health-care services 213 Regulation of drugs and medical equipment 214 Regulation of health-care providers 214 Patients’ rights 215 B. Reproductive Health Laws and Policies 215 PAGE 8 WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 9

Foreword Imagine a world in which the laws and policies of every ten-year anniversary of the FWCW; it also coincides with country allowed women to fully enjoy their reproductive the five-year anniversary of the establishment of the Mil- rights. While this is still a distant goal, a confluence of lennium Development Goals, through which world leaders factors has enabled women’s health and rights advocates reaffirmed their commitment to achieve universal access to to bring it into focus. The 1994 International Conference reproductive health care by 2015 and to end discrimination on Population and Development (ICPD) and the 1995 against women. The situation in East and Southeast Asia Fourth World Conference on Women (FWCW) were is illustrative of that in many other regions: Despite some groundbreaking for so many reasons, among them that gains, the principles agreed to at the ICPD and the FWCW governments agreed that everyone has reproductive have not been translated into legislation and policy capable rights, and that they are an inalienable part of established of transforming the lives of the vast majority of women; international human rights. The recognition, long existing legislation and policy are not backed by suffi- overdue, that the “traditional” human rights framework cient political will and financial commitment. In many applies to women’s unique human condition, including instances, enforcement is weak and accountability is lack- their reproductive and sexual lives, has inspired women ing. Inherent discrimination persists as medical services around the world. required only by women continue to be criminalized. The ICPD and the FWCW also recognized that a legal We at the Center for Reproductive Rights want the and policy environment that ensures women’s equality law to work for women, ensuring their ability to exercise is necessary to ensure positive reproductive and sexual their reproductive rights and to enjoy full equality, no health outcomes. But to create that environment, advo- matter their country or community of origin. We hope cates and policymakers need more information to support our Women of the World publication will become a useful their efforts. tool for improving women’s reproductive lives in East and This series of reports, Women of the World: Laws and Southeast Asia through legal advocacy and reform. Policies Affecting their Reproductive Lives, is intended to give advocates and policymakers a more complete view of the Luisa Cabal, Director, International Legal Program laws and policies governing women’s lives to better enable Melissa Upreti, Legal Adviser for Asia, International Legal Program legal and policy reform, to speed the implementation of Center for Reproductive Rights laws that will improve women’s health and lives, and to December 2005 assign accountability when governments fail to implement the laws designed to protect women. Initiated soon after the ICPD and the FWCW, the series to date has included reports covering Anglophone Africa, East Central Europe, Francophone Africa, Latin America and the Caribbean, and South Asia. The Center for Reproductive Rights and our collaborating organizations have raised awareness in each of the 35 countries covered by the series, and in many cases have contributed to improvements in laws and policies and their implementation. We are very pleased to introduce the newest report in our series, Women of the World: Laws and Policies Affecting their Reproductive Lives–East and Southeast Asia, covering China, Malaysia, the Philippines, Thailand, and Vietnam. This report, the product of almost three years of work, represents a collaborative effort with nongovernmental organizations in the region. Its release comes just after the ten-year anniversary of the ICPD and coincides with the PAGE 10 WOMEN OF THE WORLD: Overview* Governmental commitments at major international conferences such as the Fourth World Confer- ence on Women (Beijing, 1995), the International Conference on Population and Development (ICPD, Cairo, 1994), and the World Conference on Human Rights (Vienna, 1993) have firmly established women’s reproductive rights as human rights that must be enforced. More recently, with the reaffirmation of the Millennium Development Goals (2000), governments have agreed that addressing women’s reproductive health as a fundamental human right is key to promoting gender equality and the right to development. This marks a distinct shift from the development trends of the 1970s and 1980s, which were dominated by population control programs that failed to recognize a woman’s right to control her own fertility. There is no doubt that women’s health and rights are now clearly included in the international political agenda. Governments today are legally obligated to uphold global commitments to women’s health and human rights by introducing gender-sensitive laws and policies that guarantee and safeguard women’s reproductive rights; allocating financial resources to implement existing laws, policies, and programs; and creating mechanisms to monitor and ensure their proper enforcement.

In recent years, the women of East and Southeast Asia have region is that Thailand, Malaysia, and the Philippines have made progress on a number of fronts. One of the most established human rights commissions to monitor, docu- laudable achievements has been an impressive female lit- ment, and report human rights violations. Their work can eracy rate that ranges from 82% to 96%. This reflects tre- assist governments in fulfilling their obligations to protect mendous progress toward gender equality in education and human rights and can help raise awareness among the gen- women’s empowerment. Literacy empowers women not eral public and the international community about viola- only to proactively seek information about their health and tions of human rights. make informed decisions about their reproductive lives, but The single most encouraging regional trend for repro- also to speak out against injustice and hold their govern- ductive rights, however, has been the general shift away ments accountable for violations of their human rights. In from coercive population policies that focus upon targets addition, there has been a growing willingness in the region to those that emphasize a woman’s right to freely decide the to address violence against women through legislation. Both number and spacing of her pregnancies. This shift reflects Malaysia and the Philippines, for example, have introduced a growing international consensus that began in 1994 as laws that enable women to confront domestic violence a result of the International Conference on Population through legal measures and obtain protection orders against and Development. their abusers. This has led to a surge in reports of domestic Despite some of the positive developments in the region, violence, which is typically underreported because women a major concern is that as in most regions of the world, fear retribution from their abusers. A deeper understanding reproductive health is still largely confined to the realm of of the impact of domestic violence on women’s health is policy. Comprehensive laws that guarantee women repro- evident in Malaysia and China, where steps have been taken ductive rights and establish mechanisms for securing the to integrate emergency medical care for victims of domestic enforcement of such laws do not exist, hence women remain violence with public health services, making it possible for vulnerable to abuse and exploitation. Where legislation does victims to obtain emergency contraception. exist, it tends to be limited to certain aspects of women’s Another promising development for women in the reproductive rights, such as the right to family planning and

*The overview has been drafted in collaboration with ARROW LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 11

maternal health care; in some cases it tends to be problem- OVERARCHING CHALLENGES atic, as in the case of laws that criminalize abortion. Conse- Some of the major obstacles to the fulfillment of reproductive quently, the promises made by governments to uphold and rights as human rights in the region include persistent gender protect women’s reproductive rights are still largely aspira- inequality, insufficient data on women’s health, religious fun- tional. This is not to suggest that existing laws and policies damentalism, limited access to legal services, and the adverse are irrelevant; on the contrary, existing legislative and policy impact of international policies. barriers and gaps point to the need for reform in certain key areas and possibly the introduction of a comprehensive law that specifically addresses the gamut of women’s reproduc- �� tive health concerns from a human rights perspective. What �� follows is a reflection on the overarching challenges and a �� deeper discussion of some of the specific concerns that con- �� tinue to keep women and girls in East and Southeast Asia from the enjoyment of reproductive freedom. �� WHAT ARE REPRODUCTIVE RIGHTS? A reproductive rights framework offers a powerful �� tool for advancing women’s reproductive health and �� empowering women to address the social conditions � that jeopardize their health and lives. Reproductive rights are founded on principles of human dignity and �� well-being. Broadly speaking, they include two key �� principles: that all persons have the right to reproductive health care and to make their own decisions about their �� reproductive lives. More specifically, they encompass a broad range of internationally and nationally recognized �� political, economic, social, and cultural rights that �� include the following: �� ■ the right to life, liberty, and security

■ the right to health, reproductive health, and Sources: United Nations Population Fund (UNFPA), Country Profiles for family planning Population and Reproductive Health: Policy Developments and Indicators 2003. UNFPA, The State of the World Population 2005. ■ the right to decide the number, spacing, and timing of children 1. Persistent gender inequality ■ the right to consent to marriage and to equality The ability of women to exercise their reproductive rights in marriage is greatly influenced by the extent to which they enjoy equal ■ the right to privacy rights in education, marriage, citizenship, employment, ■ the right to be free from discrimination on property, and political participation. Women have made specified grounds significant gains in education, for example, but that has not ■ the right to be free from practices that harm translated into gains in other areas. For example, women women and girls hold only 9% of seats in national parliaments in Malaysia and ■ the right to not be subjected to torture or other Thailand and 15% in the Philippines. In Thailand and Viet- cruel, inhuman, or degrading treatment or nam, studies show that women are paid less than men for the punishment same work. In China and Thailand, the age of compulsory ■ the right to be free from sexual violence retirement is lower for women than for men. Women are ■ the right to enjoy scientific progress and to discriminated against with respect to their ability to transfer consent to experimentation citizenship to their children. In Malaysia, for example, if a child is born outside of the country, the child is considered a PAGE 12 WOMEN OF THE WORLD:

citizen only if his/her father was a citizen of Malaysia at the confidentiality, privacy, and informed consent to medical pro- time of the child’s birth. Furthermore, inequalities in mar- cedures such as abortion and sterilization can make women riage persist for women. For instance, in Malaysia, 20% of all vulnerable to coercion or discrimination in health-care settings Muslim marriages are polygamous. In Thailand, a husband and deter them from seeking health services. The promotion may divorce his wife if she commits adultery, but a wife can of gender equality, and in some instances of human rights, has divorce an adulterous husband only if she can prove that in been included as a strategy in most reproductive health policies, addition to committing adultery, her husband has financially but this is not enough to ensure that women’s rights to health, supported or “honored” another equality, non-discrimination, and woman as his wife. In Vietnam, a self-determination are in fact guar- Reports to the Committee must demonstrate woman cannot file for divorce if she anteed and protected. Despite the that health legislation, plans and policies are is pregnant or nursing a child under ratification of international treaties based on scientific and ethical research and one year of age. Such circumstanc- that call for the formal adoption of a assessment of the health status and needs of es may compel women to silently rights-based approach to health care, women in that country and take into account accept inequality and even abuse not one of the governments studied any ethnic, regional or community variations or within marriage. Women who lack here has introduced a comprehensive practices based on religion, tradition or culture. equal rights and the ability to make reproductive health-care bill. In the independent decisions within mar- General Recommendation 24, Philippines, a proposed reproductive riage are often unable to control the CEDAW Committee, para. 9. health law has been languishing for number and timing of their preg- years due to conservative opposition nancies, and they risk exposure to to abortion. In Thailand, advocacy unplanned pregnancy, unsafe abortion, maternal mortality, or groups are working in partnership with the government to HIV/AIDS. draft a bill, but nothing has been passed. In addition, with the exception of the Philippines, each of 2. Insufficient data on women’s health the countries surveyed for this report has ratified the Con- An important first step in monitoring and addressing vention on the Elimination of All Forms of Discrimination human rights violations is gathering reliable data, since a firm against Women (CEDAW) with reservations to provisions that grasp of grassroots realities is the very backbone of sound ensure equality in marriage and political participation, and an and effective laws and policies. Governments bear the pri- end to gender stereotypes. Indeed, the Malaysian Constitu- mary responsibility for collecting data to measure the level of tion was amended only in 2001 to recognize gender as a pro- human development of their citizens because it is a resource- hibited ground for discrimination, but this provision does not intensive process. Without reliable data, policymakers can apply to personal laws. Furthermore, gender discrimination neither understand nor address the incidence, causes, and against non-citizens such as migrant workers and refugees consequences of health and social problems. has been quite intense throughout the region, leaving these International treaty-monitoring bodies have repeatedly populations particularly vulnerable to exploitation and abuse. emphasized the importance of data collection for monitor- Malaysia’s two million foreign workers are charged higher fees ing the implementation of laws, policies, and basic human than Malaysian citizens for their use of public health facilities, rights. However, in East and Southeast Asia, there is a consis- and the renewal of a foreigner’s work permit may be refused tent lack of official data on key reproductive health and rights on the ground of pregnancy. In addi- issues for women and girls, especially tion, legislation such as the domestic sexual violence, unsafe abortion, and Measures to eliminate discrimination against violence act, which is meant to pro- adolescent access to reproductive women are considered to be inappropriate if tect women’s rights, does not extend health services. Although aware- a health-care system lacks services to prevent, to foreign workers. The very failure ness of domestic violence is wide- detect and treat illnesses specific to women. It to enact laws that safeguard the right spread throughout the region, only is discriminatory for a State party to refuse to to reproductive health-care services Malaysia has conducted a national provide legally for the performance of certain unique to women—such as contra- survey on the problem. Official data reproductive health services for women. ception, maternal health care, and on the incidence of deaths due to safe abortion care—itself constitutes General Recommendation 24, unsafe abortion is virtually nonex- gender discrimination. Further, the CEDAW Committee, para. 11. istent. In some instances, especially absence of laws that ensure patient with regard to maternal deaths, con- LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 13

cerns about the multiplicity of data and Their Children Act of 2004; have led to confusion about the true The duty to fulfil rights places an obligation on however, considering the broad and nature and scope of the problem. States parties to take appropriate legislative, persistent nature of human rights Without an accurate baseline, it is judicial, administrative, budgetary, economic violations, such limited services are difficult to measure progress, deter- and other measures to the maximum extent not enough. It is the government’s mine disparities, and hold govern- of their available resources to ensure that duty to ensure that legal counsel and ments accountable for their failure to women realize their rights to health care. The representation are available to people provide critical services. Committee is concerned about the evidence who cannot secure access to such 3. Religious fundamentalism that States are relinquishing these obligations as services on their own. Furthermore Religious fundamentalism pro- they transfer State health functions to private a responsive judiciary is an impor- motes stereotypes about women agencies. States and parties cannot absolve tant pre-condition for securing the based on inequality between the two themselves of responsibility in these areas by proper interpretation and application sexes, thereby undermining women’s delegating or transferring these powers to of laws. There are clear indications ability to make independent deci- private sector agencies. that, particularly in cases involving sions about their bodies and their sexual violence and harassment, General Recommendation 24, health. Religion is used frequently courts tend to favor the perpetrators CEDAW Committee, para. 17. in the political arena to deny wom- of violence by placing the burden of en full recognition of their rights. proof on victims, who must satisfy In the Philippines, where 83% of the population is Roman demanding evidentiary requirements rather than elaborate Catholic, religious fundamentalism backed by political power upon the injuries they have sustained. has become a formidable barrier to women’s access to family 5. Harmful impact of international policies planning. Catholic forces have gained considerable influence Across the region, international institutions including over the policy-making process and have used their influence the World Bank and the International Monetary Fund have to push forward a conservative agenda that focuses upon only been active in helping governments reform their econo- natural methods of family planning. mies. Countries in the region have experienced remarkable The influence of religious forces is not limited to women’s economic growth in the last few decades, but conditions access to health care, but extends to intimate relationships attached to loans and health-sector reforms proposed by within the private sphere. In Malaysia, which is an Islamic international institutions have forced governments to cut state, a proposal to recognize marital rape as a punishable public spending on health and education and introduce fees offense was dropped from a national domestic violence act for basic health services. Health sector reforms, which were because of opposition from religious conservatives in Parlia- expected to increase the efficiency, affordability, coverage, ment. In general, religious conservatives impose their moral and quality of health-care services,1 have in fact reduced and theological views to undercut a human rights approach women’s access to basic care. In Malaysia, efforts to reduce to issues such as sexual violence, HIV/AIDS prevention, and public expenditure on health care have led to the establish- reproductive and sexual health education for adolescents. ment of private hospitals that are known to charge more 4. Limited access to legal services for services. And in Vietnam, doctor’s salaries in the public Access to the judicial system through legal counsel and the health system are subsidized by user fees, leading to discrimi- guarantee of a fair trial are essential for securing the enforce- nation against those who are insured or, due to poverty, ment of rights guaranteed by the state. Without access, citizens unable to pay such fees. The dependence of governments on cannot hold governments accountable for violations of human foreign sources for contraceptives has had an adverse impact rights, and this may foster impunity. Free legal assistance and on their availability and affordability. In the Philippines, for counseling are important for women who may lack the infor- example, experts have noted a crisis in contraceptive sup- mation and support necessary to file a complaint and navigate plies, which has been compounded by the decision of the the judicial system when their rights have been violated. In U.S. Agency for International Development (USAID) to East and Southeast Asia, government legal aid services are not phase out its supply of contraceptives to the country. Fur- widely available to women. The Women Lawyers Association thermore, the conservative views of the current U. S. admin- of Thailand offers legal aid to low-income women, children, istration on reproductive rights, particularly abortion, have and youth. In the Philippines, women have a formal right emboldened local fundamentalists and hampered progress to legal counsel under the Anti-Violence Against Women in the region through restrictive policies such as the global PAGE 14 WOMEN OF THE WORLD:

gag rule, threats of funding withdrawal, and censorship at Uneven access to family planning services regional, UN-sponsored meetings. Access to family planning in the region is highly restricted for some women and modern methods of contraception LEADING CONCERNS remain beyond the reach of many. The use of all forms of This section presents key issues that require urgent atten- contraception appears to have increased in the region, partic- tion from policymakers, legislators, and advocates: fertility ularly among married women, with rates now ranging from control, inadequate maternal health care, criminalization of to 49% in the Philippines to 84% in China. However, the abortion, sexual violence, rising prevalence of HIV/AIDS use of modern methods of contraception is still notably low. among women, and lack of reproductive health care for ado- In Malaysia and the Philippines, approximately only 30% lescents. of married women aged 15–49 use modern methods. The unavailability of reliable data suggests that certain groups of women, including unmarried women, adolescent girls, and widows, have either extremely limited access or none at all to information and services relating to family planning. In the Philippines, the rate of contraceptive use among women aged 15–19 is an alarmingly low 4%. In Malaysia the government prohibits the distribution of contraceptives to unmarried adolescents. Disparities in access also exist based on residence and ethnicity. In Thailand, the northern region has reported a contraceptive prevalence rate of 83.8%, whereas the Muslim-populated south has reported a lower rate of 73%. Rural Muslim women in Malaysia report a lower rate of modern contraceptive use, which is prohibited by Islam. Access also varies according to the type of contraception. Emergency contraception, for instance, is prohibited in the Philippines but widely available in Thailand and prescribed by doctors in public health facilities in Malaysia to victims of rape and incest. Religious conservatives and other ideologues have constructed barriers to women’s access to contraception. In the Philippines, under pressure from the Catholic church, the Arroyo government has adopted strict laws regulating the sale, dispensation, and distribution of contraceptive drugs Source: UNFPA, State of World Population 2005. and devices. Encouraged by this policy shift, some local government officials have begun to use the enhanced executive 1. Fertility control authority they were given through the decentralization of The ability of women to control the number, spacing, and health care in the Philippines to further restrict the promo- timing of their children is a fundamental aspect of their repro- tion of condoms, making access more limited in some places ductive rights. Universal access to modern methods of contra- than others. In Manila City, a local administrative order that ception is both an important pre-condition and an indicator of permits only natural family planning and actively prohibits the fulfillment of this basic right. International legal bodies have the delivery of modern methods is still in place. repeatedly emphasized the obligation of states to create universal Attempts to curtail women’s access to family plan- access to family planning, but also to protect women from coer- ning have also been introduced in Malaysia, where public cion and discrimination when seeking contraceptive informa- awareness programs on contraception have been discontinued in tion and services. Although many governments in the region some public health facilities because of the government’s pro- have taken noble strides toward this goal, important concerns natalist stance. include uneven access to family planning services, incentives to Incentives for the use of contraception influence reproductive choice, restrictions on childbearing, and Providing incentives for couples to practice family planning insufficient access to infertility treatment. has been a controversial issue because doing so may impair a LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 15

woman’s ability to freely and responsibly decide the num- is allowed only if it does not contravene the government’s ber, spacing, and timing of her pregnancies and may result in “family planning, ethical principles, or relevant law.” Other de facto coercion, particularly among low-income women. prohibitions in China prevent single women from using ART Nonetheless, incentives are the norm in many parts of the and forbid the use of surrogates. region. In China, women are offered incentives to undergo There is currently no law that regulates assisted reproduc- sterilization. In Vietnam, the government provides incentive technologies in the Philippines, although the prevention tives for the use of specific methods of family planning such and treatment of infertility is one of the government’s top as sterilization and IUD insertion. In some instances, the ten reproductive health priorities. Thailand has no specific Vietnamese government has made access to loans contingent law on ART, but in 1997, the executive committee of the upon women’s participation in family planning programs. Medical Council approved regulations that permit infertil- Restrictions on childbearing ity research and treatment. However, infertility services are With the exception of Malaysia, which has adopted a pro- not covered by social security or other health plans although natalist stance, governments in East and Southeast Asia are sterilization may be covered; this situation persists despite using family planning programs as a tool to reduce popula- the fact that infertility has been designated as a priority in tion size. This is particularly evident in Vietnam and China. the reproductive health program. Vietnam’s first in vitro In Vietnam, the government formally stresses the benefits of fertilization birth took place in 1998, and by March 2003, small family sizes through the Law on Protection of Health, 1,090 such births had occurred. Since then, the government which promotes a family norm of one to two children. In has pledged to work toward the prevention and treatment of Vietnam, incentives are mandated by law to ensure small fam- infertility, in part by introducing laws regulating the dona- ilies, although coercion is prohibited. China has a longstand- tion and reception of ova, sperm, and embryos, and other ing one-child policy that was codified in 2001. Although issues concerning in vitro fertilization. Multiple forms of there are clear exceptions to the Chinese policy, there are ART are available in Malaysia, including artificial insemina- indications that it has been rigorously—and sometimes coer- tion and in vitro fertilization. cively—enforced by both national and local government officials. Official incentives to have only one child include health insurance, welfare benefits, loans focused upon poverty alle- STRATEGIES FOR ACTION

viation, and paid leaves of absence for couples who comply ■ Expand family planning programs to ensure with the policy. Furthermore, the one-child norm penalizes universal access to a full range of family planning those who violate it with social compensation fees that can be services, including emergency contraception hefty. China also restricts couples who may transmit congen- without coercion or discrimination.

ital defects to their children from marrying unless they agree ■ Promote the use of condoms to reduce the risk to use birth control or undergo sterilization. Childbearing in of infection to women of HIV/AIDS and other general is strictly monitored in China and couples are required sexually transmissible infections (STIs).

to obtain “birth permits” before having children. Given the ■ Introduce infertility treatment in public health option of having only one child, Chinese couples tend to facilities.

opt for male children and resort to sex-selective abortion as ■ Involve women in the formulation of family a means to this end despite the fact that sex determination planning laws and policies and make improvements during pregnancy and sex-selective abortion are prohib- based on their experiences and needs.

ited. Those who are unable to terminate their pregnancies ■ Abolish restrictive one—and two—child norms and frequently abandon their female children shortly after birth. encourage individuals to limit births by choice.

This has had devastating consequences for women in China ■ Remove penalties for failure to comply with and is evidenced by prevailing gender imbalance. restrictions on childbearing and take steps to address Insufﬁcient access to infertility treatment coercion in the delivery of family planning services. The problem of infertility for women needs greater attention from governments in the region. Assisted reproductive technologies (ARTs) are not widely available in the public 2. Inadequate maternal health care health sector despite the growing demand. ART is in high The right to survive pregnancy and childbirth is a basic demand in China, since 10% of Chinese couples of childbear- human right. UN committees that monitor governmental ing age suffer from infertility. However, in vitro fertilization compliance with international treaties have interpreted the PAGE 16 WOMEN OF THE WORLD:

sia has the lowest maternal mortality rate of 41 deaths per 100,000 live births, and the Philippines reports the highest rate at 200 deaths per 100,000 live births Although Malaysia, China, and Thailand appear to have met the ICPD target of fewer than 125 deaths per 100,000 live births, there is a need to investigate the causes behind the continuation of maternal deaths despite the high number of hospital deliveries and the high rate of home births monitored by trained attendants. In Vietnam, the overall maternal death rate is 130 deaths per 100,000 live births and studies show that the percentage of women receiving prenatal care decreased from around 73% in 1990 to 68% in 2003, and 70% of births in 2002 were attended by health professionals, down from 90% in 1990. Maternal deaths can be prevented and the existing death rates indicate a breach of duty by governments to protect the lives of women. Malaysia’s conﬁdential inquiry system for determining the causes of maternal deaths and making recommendations for improving maternal health services is an exemplary measure worthy of emulation by governments in the region. Unsafe abortions account for a signiﬁcant proportion of maternal deaths in the region. Restrictive laws that criminalize abortion along with limited access to family

Source: UNFPA, State of World Population 2005. planning and safe abortion services fuel this trend. Accord- ing to some estimates, the proportion of maternal deaths due failure of governments to protect women from maternal to unsafe abortion in China, Malaysia, and the Philippines death as a failure to protect their right to life. Maternal exceeds the global average of 13%.2 deaths are largely preventable and Uneven access to maternal health care can be avoided through routine Maternal mortality rates in the States parties should not restrict prenatal care and appropriate care region vary greatly by income level women’s access to health services or to during childbirth, including emer- and proximity to care. Disparities the clinics that provide those services gency obstetric care. Yet the per- in access may be symptomatic of on the ground that women do not have sistence of high rates of maternal discrimination and therefore war- the authorization of husbands, partners, death in the region highlights the rant close attention. As a general parents or health authorities, because failure of governments to fully com- rule, wealthy women or those in they are unmarried ply with international standards that urban areas have greater access to or because they are women. Other obligate them to protect women’s services than low-income women, barriers to women’s access to rights to life, equality and nondis- rural women, or those who live in appropriate health care include laws crimination, and health care. The areas marred by conflict. The dis- that criminalize medical procedures only persistence of maternal deaths in parity is particularly stark in China, needed by women punish women who the region, especially due to unsafe where the 2000 maternal mortal- undergo those procedures. abortion, and disparities in access to ity rate was 9.6 deaths per 100,000 maternal health care is problematic. General Recommendation 24, births in Shanghai, but was signifi- Persistence of maternal mortality CEDAW Committee, para. 14. cantly higher at 161 deaths in rural Although maternal mortality Xinjiang and 466 deaths in Tibet. rates have decreased throughout the region and the propor- Furthermore, averages can be dangerously misleading, as tion of births attended by trained personnel is high, the fact is the case in Malaysia, where the overall rate of maternal that a relatively prosperous and literate region continues to deaths is the lowest in the region but current data actually face a significant number of maternal deaths is cause for points to an increase in the maternal mortality rate. This is concern. Of the countries surveyed for this report, Malay- attributed to deaths among migrant populations who work LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 17

of conception and criminalizes abortion except to save the life STRATEGIES FOR ACTION of the mother, while both Vietnam and China allow abor- ■ Strengthen the primary health-care system by tion for any reason. In Malaysia, the Philippines, and Thai- making emergency obstetric care widely available land, abortion is not legally permitted on grounds of rape and by improving the overall standard of maternal or incest although in Malaysia and Thailand, a victim of health services. rape or incest may obtain an abortion if the procedure is ■ Expand access to maternal health services without authorized by doctors. In countries where the procedure is discrimination on the basis of age, marital status, or legal, governments have failed to ensure that accessible and nationality. safe abortion care is available to women. Medical abortion ■ Compile national data on the incidence of is available only in China. maternal deaths and identify the barriers that lead There are additional restrictions on minors seeking abor- to disparities in maternal mortality rates within tion, such as parental consent requirements that undermine countries. the ability of young people to make independent decisions ■ Develop strategies to address unsafe abortion as a about their own health, and making them vulnerable to abuse. cause of maternal death. In China, for example, young women may be required to obtain parental consent before obtaining an abortion. in the informal sector without health benefits or adequate Restrictive abortion laws have stigmatized the procedure access to public health services. and created an unfavorable environment for women seeking 3. Criminalization of abortion even legal abortions and post-abortion care. This problem is The right to safe and legal abortion is a basic human right compounded by the absence of protocols for requesting and and an important pre-condition for women’s reproductive providing services. Often times, service providers endanger autonomy. Legal prohibitions on abortion have been rec- women’s lives by refusing to provide abortions to women in ognized as violations of women’s right to life. International need because of their religious convictions and willful igno- legal bodies have specifically taken issue with the criminal- rance of the law. It has been widely reported that Filipino ization of abortion when a pregnant woman’s life and health health-care professionals providing post-abortion services are are endangered and when a pregnancy results from rape or often biased and abusive toward their patients, which may incest. There is international consensus for reviewing laws constitute inhumane and degrading treatment. that contain punitive provisions against women who undergo Failure to address unsafe abortion illegal abortion. In most parts of East and Southeast Asia, the The lack of comprehensive official data anywhere in criminalization of abortion persists, and there is limited access the region about the prevalence of unsafe abortion has the to a full range of safe abortion services where the procedure is dangerous consequence of rendering one of the most seri- permitted. Another leading concern is the failure to address ous threats to women’s lives invisible. Sample studies and unsafe abortion. anecdotal evidence suggest that the number of deaths due Denial of abortion rights to unsafe abortion and the rate of complications is high. In The legal status of abortion in the countries surveyed for Thailand, where abortion is not covered by health insurance, this report varies from highly restrictive to liberal. The con- 28.8% of women who sought abortions in 1999 developed stitution of the Philippines recognizes life from the moment severe complications. In the Philippines, approximately

To Save the To Preserve To Preserve Fetal Rape Incest Woman's Life Physical Health Mental Health Impairment China* • • • • • • Malaysia • • • Philippines • Thailand • • • Vietnam • • • • • • This table indicates the grounds on which abortion is explicitly permitted. Refer to the country chapters to understand how they are interpreted. •sex-selective abortion is prohibited PAGE 18 WOMEN OF THE WORLD:

tries surveyed define rape narrowly and recognize it only in STRATEGIES FOR ACTION limited circumstances. In Malaysia, for example, only vaginal penetration constitutes rape. Additionally, evidentiary rules ■ Abolish criminal abortion laws. requiring independent corroboration and proof of the use of ■ Create access to safe and affordable abortion services, including nonsurgical abortion, and post-abortion force, such as those prescribed in the Malaysian Penal Code, care by expanding access to such services at the level make it difficult to convict rapists. Furthermore, women’s of primary health care. groups throughout the region have advocated for penal code reform to broaden the definition of and penalties for rape. A ■ Ensure the humane treatment of women who have undergone abortion, whether legal or illegal. successful example is the Philippines, where an anti-rape law now classifies marital rape as a criminal offense, and rape has ■ Undertake public education campaigns to eliminate the stigma against abortion. been reclassified as a crime against the person rather than just a socially unacceptable crime against chastity (efforts of ■ Compile national data on the incidence of deaths due to unsafe abortion as a basis for developing strategies women’s groups in Malaysia to criminalize marital rape have to prevent these deaths. been unsuccessful despite their success in pushing for domestic violence legislation). Absence of sexual harassment laws 400,000 unsafe abortions occur each year. In Malaysia, police Of the five surveyed countries, Malaysia, Thailand, and reported a mere nine abortion-related deaths in the year 2002, Vietnam have no specific legislation addressing sexual harass- but experts believe that the actual number is much higher. In ment. In Malaysia, women seeking to bring claims of sex- China, instances of forced abortion have come to light. The ual harassment must rely upon penal code provisions that procedure is often ordered by government officials without categorize these offenses as being against the “modesty” of concern for the pregnant woman’s health or preference. This is a woman. In addition, victims carry the double burden of a cause for concern in a country where, in 1999, an estimated proving the alleged perpetrator’s offense and his intention to four million abortions took place. The lack of reliable infor- sexually harass beyond a reasonable doubt. In response to mation on the incidence and circumstances in which women the government’s indifference to sexual harassment crimes, have abortions indicates the failure of governments to priori- the Joint Action Group against Violence against Women, a tize and allocate sufficient resources to a major human rights coalition of women’s organizations in Malaysia, proposed a concern, and has made it difficult to assess the real impact of sexual harassment bill to the Ministry of Human Resources laws that criminalize abortion and the real scope of deaths due in 2001, but the bill never became law. Even where laws have to unsafe abortion. Hard data is essential for countering moral been adopted, government apathy exists. For example, the and religious challenges to the legalization of the procedure in Philippines adopted the Anti-Sexual Harassment Act of 1995, addition to ensuring that abortions are undertaken by choice which prohibits sexual harassment in employment, educa- and under safe conditions. tion, and training environments, and even extends liability to 4. Sexual violence an employer or head of an institution who fails to take action The right of women to be free from gender-based vio- in response to a claim of sexual harassment. However, the lence, including rape and other forms of sexual violence, has act has rarely been invoked: No Supreme Court cases have been recognized by the international community as a basic resulted from it, and cases filed in lower courts have failed to human right. International law formally recognizes gender- rule in favor of the woman. In China, a sexual harassment based violence as an impediment to women’s equality. In law was only introduced in 2005 and will not go into effect recent years, countries in the region have introduced a vari- until January 2006. ety of laws and policies to deal with the crisis of sexual vio- Trafficking lence against women and girls, including a national domestic Another major form of violence against women in most violence law in Malaysia and the Anti-Abuse of Women in of the countries surveyed is the trafficking of women and Intimate Relationships Act in the Philippines. However, girls into commercial sex work. The number of women problems in the region include an overly narrow definition of trafficked from China, the Philippines, and Vietnam to rape, the absence of sexual harassment laws, and the traffick- more affluent countries such as Malaysia and Japan is on ing of women and girls into commercial sex work. the rise. Governments are aware of the growing industry, Overly narrow definitions of rape and most have passed legislation criminalizing the practice. With the exception of the Philippines, laws in the coun- However, the construction and enforcement of these laws LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 19

to condoms, the absence of prevention of mother-to-child STRATEGIES FOR ACTION transmission programs, and the neglect of other sexually transmissible and reproductive infections and diseases. ■ Introduce an official zero-tolerance policy against Absence of laws guaranteeing the rights of persons living with HIV/ sexual violence through appropriate legislation. AIDS ■ Institute penal code reform to broaden the China, Malaysia, Thailand and Vietnam have national definition of and penalties for rape, and recognize policies for HIV/AIDS prevention and control, but they have marital rape as an offense. failed to pass laws that formally recognize the human rights ■ Undertake national studies to determine the of persons living with HIV/AIDS. Such legislation would true nature, scope, and causes of sexual violence include recognition of the right to nondiscrimination in all against women and create a national database for aspects of life, including health care, and the right to treat- developing effective strategies. ment. This is of special concern because a number of formal ■ Integrate domestic violence services with measures to prevent the transmission of HIV/AIDS constitute reproductive health services in the public sector and inherent threats to individuals’ rights to privacy and to non- introduce emergency contraception as a routine discrimination. Examples include compulsory HIV/AIDS part of emergency care. testing by several Malaysian states, Chinese laws that restrict ■ Ensure effective enforcement of anti-trafficking the movement of HIV-positive individuals into and out of the laws and integrate emergency medical care for country, and the Thai government’s requirement that indi- victims of trafficking with enforcement strategies. viduals disclose their HIV status in order to receive financial assistance for education or occupational training and support. In contrast, the Philippines has passed a groundbreaking non- remains problematic. Law enforcement officials frequently discrimination law for persons living with HIV/AIDS. threaten victims of trafficking as illegal aliens and prosecute Dwindling access to condoms women rather than the traffickers and clients. In Malaysia, for The changing nature of the HIV/AIDS epidemic has raised instance, police generally arrest or deport individual women, concerns about women’s ability to protect themselves against rather than prosecuting the traffickers. Victims of trafficking transmission. In most countries, the epidemic has spread tend to be foreign women and are denied the legal protections normally available to citizens. They may be fined, whipped, or imprisoned for allegedly trying to enter the country illegally. A significant proportion of women in jails in Malaysia are believed to be victims of trafficking. Furthermore, poor enforcement of existing laws remains a problem. In Thailand between 1996 and 1999, 355 people were arrested for violating the Prostitution Prevention and Suppression Act, but only 14 were convicted and sentenced. 5. Rising prevalence of HIV/AIDS and other reproductive infections The vulnerability of women to HIV/AIDS has been internationally recognized, and governments have been urged to pay special attention to the critical links between women’s reproductive roles, their low sociolegal status and their vulnerability to HIV/AIDS. Almost half a million women are living with HIV/AIDS in East and Southeast Asia; with the exception of Thailand, prevalence rates have increased in each country since 2001. Experts maintain that despite growing rates of HIV/AIDS, governments have been slow to respond comprehensively to the pandemic. Some of the pressing concerns include the absence of laws that protect the rights of people living with HIV/AIDS, dwindling access Source: UNFPA, State of World Population 2005. PAGE 20 WOMEN OF THE WORLD:

programs have become an important aspect of HIV/AIDS STRATEGIES FOR ACTION care globally as policymakers recognize the impact of gender discrimination on rising HIV/AIDS rates among women. ■ Enact legislation that guarantees people living with HIV/AIDS their basic human rights to life, Women become vulnerable to HIV and pregnancy when they nondiscrimination, health, privacy, confidentiality, have limited power to refuse sex or to demand the use of con- and humane treatment. doms despite knowing that their partner is HIV-positive. In the countries surveyed, China, Malaysia, Thailand, and Viet- ■ Prohibit mandatory HIV testing, and ensure that tests are performed with the informed consent of nam operate PMTCT programs; these initiatives are limited individuals and are accompanied by pre- and post- in scope, and information about their methodologies is not test counseling. available. Nonetheless, the growing rate of HIV/AIDS in the region underscores the immediate need for PMTCT programs ■ Protect pregnant women living with HIV/AIDS against coerced sterilization and abortion, while as an integral part of reproductive health care. Since these making both options available for women who programs are primarily conceived as prevention programs for choose to undergo these procedures. Introduce infants, policymakers must be careful not to compromise a PMTCT programs to address the specific needs mother’s right to informed consent with respect to testing, of pregnant women living with HIV/AIDS with treatment, and confidentiality in care. The lack of PMTCT due respect for their privacy, confidentiality, and programs in the Philippines is potentially devastating. In the personal decisions. Philippines, for example, abortion is illegal, so an HIV-positive mother who does not want to risk transmission of the ■ Undertake public education campaigns to eliminate stigma, discrimination, and violence against people disease to her fetus has no option but to carry her pregnancy living with HIV/AIDS. to term. In these situations, the risks of forced pregnancy and unsafe abortion are high. Both are detrimental to women’s ■ Expand efforts to gather data on, prevent, and treat STIs and reproductive diseases. health and involve violations of their basic human rights. Sexually transmissible infections (STIs) and other neglected reproductive infections and diseases beyond high-risk groups, leading to rising rates of infection HIV/AIDS has been able to draw the attention of govern- among heterosexuals. The most common method of trans- ments, but other sexually transmissible infections and non- mission in Thailand is through sexual relations. Although intravenous drug use remains the predominant method of transmission in China and Malaysia, the incidence of sexual transmission is steadily increasing in both countries. In Malay- sia, the largest proportion of infected women is composed of housewives. Condoms are the only available and affordable means of preventing sexual transmission of the virus in these countries, but without gender equality, women are not able to insist on condom usage. In addition, restrictions on contraceptive advertising, as in Malaysia, and the growing shortage of condom supplies are likely to further restrict access to condoms for women. Unavailability of national data on condom usage also affects the direction and focus of public health programs. Furthermore, the Catholic church in the Philippines has blocked the use of national funds for condoms and other contraceptives. And there are deep concerns among reproductive health advocates that global funding for HIV/AIDS focuses on treatment and care rather than prevention, which may compel governments to shift their focus from prevention programs to treatment and care exclusively. Absence of prevention of mother-to-child transmission programs Prevention of mother-to-child transmission (PMTCT) Source: UNFPA, State of World Population 2005. LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 21

transmissible infections such as reproductive tract infections certain services, including family planning services, to unmar- (RTIs) and reproductive cancers have been largely neglected. ried adolescents. The denial of sexual and reproductive health Data on the incidence of these diseases is virtually nonexistent services is especially problematic for a region in which the in each of the countries surveyed, and legal and policy infor- average age of marriage is 22. To presume that adolescents do mation is sparse. The failure to address infections other than not engage in any sexual activity or find themselves vulnerable HIV/AIDS leaves women vulner- to unwanted sexual encounters prior Adolescents who are subject to discrimination able to other chronic diseases, ecto- to marriage is unrealistic. In Vietnam, are more vulnerable to abuse, other types of pic pregnancy, cancer, stigma, and it is estimated that around one-fifth violence and exploitation, and their health and even domestic violence. Malaysia is of all women become mothers by the development are put at greater risk. They the only country in the region that age of 19. According to the country’s are therefore entitled to special attention and has pledged to address reproductive ministry of health, around 60% of protection from all segments of society. cancer by establishing the National HIV carriers were adolescents in Technical Committee for Cervical General Comment 4, 2001. Furthermore, the situation Cancer Screening. However, ser- Committee on the Rights of Children, para. 6. may not necessarily improve after vices needed to effectively detect and marriage. For example, in Thailand, treat STIs, RTIs, and reproductive cancers have generally not less than half of all married adolescent girls use contracep- been integrated with other health services and have not been tion. Denial of services and information critical to the well- prioritized in the ongoing health-sector reforms. being of children and adolescents is contradictory to their 6. Lack of reproductive health care for adolescents best interest and amounts to a denial of their basic rights, The human rights of children and adolescents have been including their rights to life, nondiscrimination, and health. unequivocally articulated and affirmed through a range of Health risks for adolescent girls are further compounded in international human right treaties and policy documents. countries where abortion is criminalized. In Thailand in 1991, The Children’s Rights Convention in particular establishes girls under the age of 21 accounted for around 30% of women children’s right to the highest standard of health and recogniz- hospitalized for abortion-related complications. China seems es that in all matters relating to children, the best interests of to be an exception as it officially allows unmarried individu- the child should take precedence over all other considerations. als, including adolescents, full access to family planning ser- International legal bodies have persistently emphasized the vices, although minors may be required to obtain parental need to provide adolescents full access to reproductive health consent for abortion.3 The nonexistence of laws and policies information and services, including recognizing the reproductive rights sex education. However, adolescents States parties should provide a safe and of adolescents may make them vul- in the region are repeatedly denied supportive environment for adolescents, that nerable to discrimination in educa- access to reproductive health-care ensures the opportunity to participate in tional institutions. Legal provisions services and information. Gov- decisions affecting their health, to build life- allowing educational institutions to ernments have failed to ensure full skills, to acquire appropriate information, to expel students for getting married or access to reproductive and sexual receive counselling and to negotiate the health- pregnant were only recently amend- health services as part of general behaviour choices they make. The realization of ed in China. health care for adolescents, and they the right to health of adolescents is dependent Reproductive and sexual health have also failed to guarantee com- on the development of youth-friendly health education prehensive sexual and reproductive care, which respects confidentiality and Governments in the region have health education in schools. privacy and includes appropriate sexual and recognized the need for sex educa- Denial of information and services in reproductive health services. tion as part of their reproductive health-care settings health, population and HIV/AIDS Although children and adoles- General comment No. 14, prevention strategies; however, one cents comprise more than 50% of the Committee on Economic, weakness of these programs as not- total population of at least Malaysia, Social and Cultural Rights, para. 23. ed by experts in the region is that the Philippines, and Vietnam, their the sexual and reproductive health needs are neglected. In some instances, adolescents are out- and rights education that adolescents receive is intended rightly denied sexual and reproductive health services in pub- to change adolescent sexual behavior rather than recog- lic facilities. The government of Malaysia does not provide nize the rights of adolescents to reproductive health care PAGE 22 WOMEN OF THE WORLD:

and show respect for their bodily integrity.4 Furthermore, abstinence is often the only socially sanctioned message in STRATEGIES FOR ACTION health education programs for adolescents. In Malaysia ■ Formally prohibit age-based discrimination in the and the Philippines, sex education is often incorporated provision of health-care services and ensure that the into other topics, including physical education, biolo- best interests of children and adolescents supercede gy, and moral and religious studies. This diminishes the all other considerations. importance of sex education as a topic worthy of separate ■ Ensure that adolescents have access to information treatment. It also overlooks children and adolescents who and services without discrimination and with due are not in school, leaving them even more vulnerable to a respect to their level of maturity and dignity. host of reproductive health problems, including unplanned ■ Ensure that the same rights to informed consent, pregnancy and HIV/AIDS. In China, approximately one privacy, and conﬁdentiality that are granted to million students belonging to ethnic minority groups, 70% adults are granted to adolescents. of whom are girls, drop out of school each year to provide ■ Institute age-appropriate reproductive and sex ﬁnancial support to their families. education programs based on a human rights framework in schools and colleges.

■ Involve adolescents in the development of laws and THE VITAL ROLE OF policies pertaining to their health and rights. NON-GOVERNMENTAL ORGANIZATIONS (NGOS) NGOs that advocate for women’s human rights play an PROMOTING A RIGHTS-BASED APPROACH TO important role in the region by conducting research WOMEN’S REPRODUCTIVE HEALTH for law and policy reform, advocating on behalf of In relation to health, a rights-based approach means integrating women, monitoring law and policy implementation, human rights norms and principles in the design, implementation, and holding governments accountable for violations of monitoring, and evaluation of health-related policies and programs. women’s reproductive rights. These include human dignity, attention to the needs and rights of In countries with less open political climates, state- vulnerable groups, and an emphasis on ensuring that health systems sponsored mass women’s organizations have played an are made accessible to all. The principle of equality and freedom from important role. For instance, the All-China Women’s discrimination is central, including discrimination on the basis of sex Federation (ACWF) and the Vietnam Women’s Union and gender roles. (VWU) review laws that discriminate against women – World Health Organization5 and participate in the drafting of laws. At the same The role of international law time, these state-sponsored organizations have limited International law is fundamental to safeguarding women’s freedom to detract from the state’s official position on reproductive rights in East and Southeast Asia. With the key issues, including birth control. notable exception of Malaysia, the countries surveyed for this NGOs such as those in Thailand, Vietnam, China, report have largely committed to six core international human and the Philippines have been playing an active role rights treaties (see “Human Rights Treaty Ratification in East in providing women access to health services by and Southeast Asia”). Of these treaties, CEDAW and the CRC offering family planning information, counseling, are the most widely ratified treaties in the region. and services. They have worked to increase access to Treaty ratification antiretroviral treatment in Malaysia and to prevent and Governments that have signed and ratified, or acceded to, manage abortion complications in the Philippines. In international treaties bear certain legal obligations. They are Thailand, they focus on eliminating gender violence obligated to recognize women’s reproductive rights by ensuring and the trafficking of women and children. In China, that national laws and policies are in compliance with interna- the ACWF and other women’s NGOs have established tional legal standards; to report to treaty monitoring bodies that shelters, hotlines, and counseling centers for battered monitor compliance; to implement and publicize concluding women, and they have trained law enforcement observations and recommendations issued by treaty monitor- officials to curb domestic violence. ing bodies; and, to work in partnership with NGOs to ensure the protection and advancement of human rights. LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 23

HUMAN RIGHTS TREATY RATIFICATION IN EAST AND SOUTHEAST ASIA The chart below provides the current status of the following six core international human rights treaties in each of the countries surveyed for this report:

■ International Covenant on Civil and Political Rights (ICCPR)

■ International Covenant on Economic, Social, and Cultural Rights (ICESCR)

■ Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

■ Children’s Rights Convention (CRC)

■ International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

■ Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment (CAT)

CHINA MALAYSIA PHILIPPINES THAILAND VIETNAM ICCPR Signature - Ratification Accession Accession CCPR-OP1 - - Accession - - ICESCR Ratification - Ratification Accession Accession CEDAW Ratification with Accession with Ratification Accession with Ratification with reservations reservations reservations reservations CEDAW-OP - - Ratification Ratification with - reservations CRC Ratification Accession Ratification Accession Ratification CERD Accession - Ratification Accession Accession CAT Ratification - Accession - - Source: Office of the United Nations High Commissioner for Human Rights, UN Treaty Database, http://www.unhchr.ch/tbs/doc.nsf.

Reservations to treaties Malaysia has ratified (acceded to) the fewest treaties; the children’s nationality. In Malaysia, international treaty pro- Philippines is the only country to have ratified all six without visions are ratified on the understanding that international reservation. Although some governments in the region have standards will be modified to accommodate national laws. expressed reservations to key treaty provisions, it is a widely The Philippines has also ratified ICCPR’s first optional pro- accepted norm of international law that once a government tocol8 and, along with Thailand, CEDAW’s optional protocol.9 has signed a treaty, it is obligated not to act contrary to the Optional protocols accompany existing treaties and create pro- treaty’s spirit and principles. cedures for individuals seeking to redress the violation of their Thailand6 and Malaysia’s7 reservations to CEDAW are par- human rights when attempts to secure a domestic remedy have ticularly noteworthy because they disregard provisions that failed. Their ratification is important because it can open doors would guarantee women’s equality. Specifically, Thailand has for women who have exhausted domestic channels and have refused to recognize Article 16, which eliminates discrimi- nowhere else to turn. The remedies that treaty-monitoring nation against women in marriage and family matters and bodies may provide for those who use optional protocols may prohibits child marriage. Malaysia has refused to recognize include recommendations to governments for punishing the particular provisions in Article 16 that secure women’s equal perpetrator of a crime, compensation for victims, and sugges- rights upon entering marriage, in being a party to a marriage, tions for specific reforms in the country’s health-care system or in dissolving a marriage, and as guardians of children. Fur- legal system. While the decisions of international bodies are not ther reservations reflect Malaysia’s unwillingness to dismantle legally enforceable in the strictest sense, they are binding and gender stereotypes, to permit women to participate in politics, can be used by advocates to create political pressure on errant and to grant women equal rights with men regarding their governments to fulfill their treaty obligations. PAGE 24 WOMEN OF THE WORLD:

THE ROLE OF TREATY-MONITORING BODIES International treaty-monitoring bodies (TMBs) occasionally issue general recommendations that elaborate upon existing treaty provisions. The CEDAW Committee drafted General Recommendation 24 on Women and Health, which explains the nature of States obligations created by the right to health that's guaranteed by CEDAW13. It establishes the importance of women’s health as “a central concern in promoting the health and well-being of women,” and requires States to “eliminate discrimination against women in their access to health-care services throughout the life cycle”.14 It further recognizes that the obligation to respect women’s right to health requires States parties to “refrain from obstructing action taken by women in pursuit of their health goals”.15 The Committee has expressed particular concern about the health needs and rights of women belonging to vulnerable and disadvantaged groups.16 Furthermore, the Committee on the Rights of the Child has expressed concern about the failure of states to pay attention to the speciﬁc needs of adolescents as rights holders and to promote their health and development. This concern motivated the Committee on the Rights of the Child to draft General Comment 4 on “Adolescent health and development in the context of the Convention on the Rights of the Child” which requires States parties to “take all appropriate legislative, administrative and other measures for the realization and monitoring of the rights of adolescents to health and development as recognized in the Convention.”17 It requires States parties to “ensure that adolescent girls and boys have the opportunity to participate actively in planning and programming for their own health and development”.18 TMBs regularly issue concluding observations or comments during the periodic state reporting process that may contain expressions of concern about certain speciﬁc issues and recommendations for action. The following are key examples of the committees’ potential for advancing women’s reproductive rights in the region (emphasis is added by the Center):

“The Committee urges the Government to maintain free access to basic health care and to continue to improve its family planning and reproductive health policy, inter alia, through making modern contraceptive methods widely available, affordable, and accessible.” Vietnam, Committee on the Elimination of Discrimination Against Women, July 31, 2001, U.N. Doc. A/56/38 19 “The Committee is deeply concerned about reports of forced abortions and forced sterilizations imposed on women, including those belonging to ethnic minority groups, by local ofﬁcials in the context of the one-child policy, and about the high maternal mortality rate as a result of unsafe abortions.” China, Committee on Economic, Social, and Cultural Rights, May 13, 2005, U.N. Doc. CESCR/E/C.12/Add.107 20 “The Committee urges the Government to examine the ways in which its population policy is implemented at the local level and initiate an open public debate thereon. It urges the Government to promote information, education, and counseling, in order to underscore the principle of reproductive choice, and to increase male responsibility in this regard.” China, Committee on the Elimination of Discrimination Against Women, February 3, 1999, UN Doc. A/54/3821 “The Committee expresses concern about the prevalence of violence against women and, in particular, domestic violence. It also expresses concern at the lack of legal and other measures to address violence against women, as well as at the failure of the State party speciﬁcally to penalize marital rape.” Vietnam, Committee on the Elimination of Discrimination Against Women, July 31, 2001, U.N. Doc. A/56/3822 “The Committee is particularly concerned over the absence of data on adolescent health, including on teenage pregnancy, abortion, suicide, accidents, violence, substance abuse, and HIV/AIDS. In this regard, the Committee recommends that the State party increase its efforts to promote adolescent health policies and strengthen reproductive health education and counseling services.” Thailand, Committee on the Rights of the Child, October 26, 1998, UN Doc. CRC/C/155/Add.9723 “The Committee recommends the State Party to ensure access to reproductive health counseling and provide all adolescents with accurate and objective information and services in order to prevent teenage pregnancies and related abortions; and strengthen formal and informal education on sexuality, HIV/AIDS, STIs, and family planning.” Philippines, Committee on the Rights of the Child, June 3, 2005, UN Doc. CRC/C/15/Add.25924 LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 25

Reporting status legal counsel and assistance.

Most of the countries have reported at least once on their ■ Increase the capacity of government officials to compliance with the international human rights treaties they incorporate human rights principles into every have ratified. With the exception of Malaysia, all of the coun- aspect of their work through training and sensiti- tries have reported to the CEDAW Committee.10 Malaysia’s first zation. As a first step, help law and health minis- combined initial and second periodic report is due for consider- tries and the judiciary to promote a human rights ation by the Committee in 2006.11 Similarly, with the exception approach to health.

of Malaysia, the countries surveyed have reported to the CRC, ■ Submit reports to treaty-monitoring bodies with although they have been three to six years late in submitting adequate information and data on key reproductive their reports.12 The failure to meet reporting deadlines may health issues, and publicize and implement conclud- indicate a country's failure to prioritize human rights. ing comments issued by such bodies at the national level. STRATEGIC RECOMMENDATIONS ■ Withdraw reservations to CEDAW and ratify the Women’s health policies must be developed within a broad framework optional protocol to CEDAW to ensure full implemen- linking human rights principles with population and development, tation of the treaty. poverty eradication, social justice, gender equality and equity, and To advocates for women’s health and rights: women’s empowerment, and comprise a comprehensive set of strategies ■ Build collaborative strategies with health-service pro- that are designed to protect and promote their rights. viders, lawyers, and community-based organizations – Asian Pacific Resource and Research Centre for Women to monitor and document violations of human rights, (ARROW) and develop strategies to establish accountability for The fulfillment of women’s reproductive rights requires violations by government and non-state actors through multidisciplinary strategies based on a human-rights frame- various strategies, including litigation. work. At the very least, governments should introduce com- ■ Monitor governments to ensure that they respond to prehensive reproductive health legislation that guarantees the complaints about discrimination, coercion, and vio- rights of individuals to determine the number, spacing, and lence that undermine women’s health in the private timing of their children and the right to make choices about and public spheres. reproduction free from discrimination, coercion, and violence. ■ Develop collaborative strategies among diverse Comprehensive reproductive health legislation that includes nongovernmental organizations by strengthening penal code reform regarding issues such as abortion and sexual sexual and reproductive health and rights partnerships violence can provide a formal means for addressing reproduc- at the international, national, state, and local levels. tive rights violations. This will help improve the delivery of ■ Monitor and publicize governmental compliance with reproductive health care—a goal shared by governments in human rights principles in reproductive health and the region. women’s empowerment policies and programs and in What follows are general recommendations for promoting a relationships with international financial institutions rights-based approach to reproductive health care and holding and donors. governments accountable for violations. ■ Expose and advocate against the political collusion of To governments: religious conservative bodies with the state in the for- ■ Introduce gender concerns in the daily work of key mulation of reproductive health policy, legislation, and departments such as ministries of health, law, women’s judicial decision-making. affairs, and finance, and ensure that these offices obtain ■ Counter the influence of international funding insti- sufficient technical and financial resources to support tutions that propose budget cuts for health programs law and policy implementation, the monitoring of by pushing governments to defend their international reforms, and research. treaty obligations to citizens. ■ Promote the participation of women in all levels of ■ Seek remedies for violations of human rights in government including parliament, ministries, and judi- national courts and if national remedies fail, consider cial bodies. filing complaints with international legal bodies. ■ Make the legal system more accessible by undertaking ■ Lobby governments for the withdrawal of reservations public campaigns that raise awareness of legal rights, to CEDAW and for the ratification of the optional pro- and create legal aid services for those who require free tocols to CEDAW and the ICCPR. PAGE 26 WOMEN OF THE WORLD:

ENDNOTES

1. Asian Pacific Resource and Research Centre for Women (ARROW), ICPD: Ten Years On: Monitoring on Sexual and Reproductive Heath and Rights in Asia (2005), at 32. 2. World Health Organization (WHO), Reproductive Health Strategy § 17 (May 2004), available at http://www.who.int/reproductive-health/publications/strategy.pdf. 3. ARROW, supra note 1, at 9. 4. ARROW, supra note 1, at 9. 5. World Health Organization (WHO), Human Rights-Based Approach to Health, http:// www.who.int/trade/glossary/story054/en/. 6. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979) (entered into force Sept. 3, 1981, ratified with reservations by Thailand Sept. 8, 1985). 7. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979) (entered into force Sept. 3, 1981) available at http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm 8. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornogrophy, adopted May 25, 2000, G.A. Res. 54/263, U.N. GAOR, 54th Sess., UN Doc A/RES/54/263 (2000) (ratified by the Philippines, entered into force Jan. 18, 2002). 9. Optional Protocol to the Convention on the Elimination of Discrimination against Women, Oct. 6, 1999, G.A. Res. 54/4, U.N. GAOR, 54th Sess., U.N. Doc A/Res/54/4 (1999) (ratified by the Philippines and Thailand, entered into force Dec. 22, 2000). 10. Consideration of reports submitted by States parties under article 18 of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Combined initial and second periodic reports of States parties, Malaysia, CEDAW Committee, U.N. Doc. CEDAW/C/ MYS/1-2 (2005). 11. Id. 12. Submission of Reports By State Parties of the Committee on the Rights of the Child, 39th Sess., U.N. Doc. CRC/C/148 (2005). 13. General Recommendation 24 of the Committee on the Elimination of Discrimination Against Women, 12th Sess., para. 2, (1999). 14. Id. 15. Id para. 14. 16. Id. para. 6. 17. General Comment 4 of the Committee on the Rights of the Child, 33rd Sess, para. 39. U.N. Doc. CRC/GC/2003/4 (2003). 18. Id. para. 39 (d). 19. Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Vietnam, 25th Sess., para. 232-276, U.N. Doc. A/56/38 (2001). 20. Concluding Observations of the Committee on Economic, Social, and Cultural Rights: China, 34th Sess., para. 36, U.N. Doc. CESCR/E/C.12/Add.107 (2005). 21. Concluding Observations of the Committee on the Elimination of Discrimination Against Women: China, 20th Sess., para. 251-336, U.N. Doc. A/54/38 (1999). 22. Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Vietnam, 25th Sess., para. 232-276, U.N. Doc. A/56/38 (2001). 23. Concluding Observations of the Committee on the Rights of the Child: Thailand, 19th Sess., para. 25, U.N. Doc. CRC/C/155/Add.97 (1998). 24. Concluding Observations of the Committee on the Rights of the Child: Philippines, 39th Sess., U.N. Doc. CRC/C/15/Add.259 (2005). LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 27 1. China

Statistics

GENERAL Population

■ Total population (millions): 1,315.8.1

■ Population by sex (thousands): 639,189.0 (female) and 674,120.0 (male).2

■ Percentage of population aged 0–14: 24.2.3

■ Percentage of population aged 15–24: 16.3.4

■ Percentage of population in rural areas: 61.5 Economy

■ Annual percentage growth of gross domestic product (GDP): 9.7.6

■ Gross national income per capita: USD 1,100.7

■ Government expenditure on health: 2% of GDP.8

■ Government expenditure on education: 2% of GDP.9

■ Percentage of population below the poverty line: 5.10

WOMEN’S STATUS

■ Life expectancy: 73.9 (female) and 70.3 (male).11

■ Average age at marriage: 22.1 (female) and 23.8 (male).12

■ Labor force participation: 80.3 (female) and 90.1 (male).13

■ Percentage of employed women in agricultural labor force: Information unavailable.

■ Percentage of women among administrative and managerial workers: Information unavailable.

■ Literacy rate among population aged 15 and older: 82% (female) and 94% (male).14

■ Percentage of female-headed households: Information unavailable.

■ Percentage of seats held by women in national government: 22.15

■ Percentage of parliamentary seats occupied by women: 20.16

CONTRACEPTION

■ Total fertility rate: 1.72.17

■ Contraceptive prevalence rate among married women aged 15–49: 84% (any method) and 83% (modern method).18

■ Prevalence of sterilization among couples: 46.1% (total); 35.9% (female); 10.2% (male).19

■ Sterilization as a percentage of overall contraceptive prevalence: 54.5.20

MATERNAL HEALTH

■ Lifetime risk of maternal death: 1 in 710 women.21

■ Maternal mortality ratio per 100,000 live births: 56.22 PAGE 28 WOMEN OF THE WORLD:

■ Percentage of pregnant women with anemia: 52.23

■ Percentage of births monitored by trained attendants: 97.24

ABORTION

■ Total number of abortions per year: 7,930,000.25

■ Annual number of hospitalizations for abortion-related complications: Information unavailable.

■ Rate of abortion per 1,000 women aged 15–44: 26.1.26

■ Breakdown by age of women obtaining abortions: Information unavailable.

■ Percentage of abortions that are obtained by married women: Information unavailable.

SEXUALLY TRANSMISSIBLE INFECTIONS (STIS) AND HIV/AIDS

■ Number of people living with sexually transmissible infections: Information unavailable.

■ Number of people living with HIV/AIDS: 840,000.27

■ Percentage of people aged 15–49 living with HIV/AIDS: 0.1 (female) and 0.2 (male).28

■ Estimated number of deaths due to AIDS: 44,000.29

CHILDREN AND ADOLESCENTS

■ Infant mortality rate per 1,000 live births: 33.30

■ Under ﬁve mortality rate per 1,000 live births: 47 (female) and 39 (male).31

■ Gross primary school enrollment ratio: 115% (female) and 115% (male).32

■ Primary school completion rate: Information unavailable.

■ Number of births per 1,000 women aged 15–19:5.33

■ Contraceptive prevalence rates among married female adolescents: Information unavailable.

■ Percentage of abortions that are obtained by women younger than age 20: Information unavailable.

■ Number of children under the age of 15 living with HIV/AIDS: Information unavailable. CHINA PAGE 29

ENDNOTES

1. See United Nations Population Fund (UNFPA), The State of World Population 2005, at 112 (estimate for 2005). 2. See United Nations Population Fund (UNFPA), Country Profiles for Popula- tion and Reproductive Health: Policy Developments and Indicators 2003 (2003), http://www.unfpa.org/profile/default.cfm. [hereinafter UNFPA, Country Profiles] 3. See The World Bank, World Development Indicators 2004, at 38 (2004), http:// www.worldbank.org/data/ (estimate for 2002).[Hereafter The World Bank]. 4. See UNFPA, Country Profiles, supra note 2. 5. See UNFPA, The State of World Population 2005, supra note 1, at 112, (estimate for 2003). 6. See The World Bank, supra note 3. (estimate for 1990-2002). 7. See The World Bank, World Development Indicators 2004, Data Query, http://devdata.worldbank.org/data-query/ (statistical figure obtained through the Atlas method) (estimate for 2003). 8. See UNFPA, The State of World Population 2005, supra note 1, at 112. 9. See United Nations CyberSchoolBus, InfoNation, Government Education Expenditure (2004), http://www.un.org/Pubs/CyberSchoolBus/infonation/e_infona- tion.htm (estimate for 1997). 10. See The World Bank, Country at a Glance Tables for China 2004, at 1 (2004), http://www.worldbank.org/data/countrydata/countrydata.html. 11. UNFPA, The State of World Population 2005, supra note 1, at 108 (estimate for 2005). 12. See UNFPA, Country Profiles , supra note 2. 13. See Id. 14. See Id. 15. See Save the Children, State of World’s Mothers 2004, at 36 (2004), http:// www.savethechildren.org/mothers/report_2004/images/pdf/SOWM_2004_final.pdf (estimate for 2004). 16. See United Nations Statistics Division, Millennium Indicators Database (2005), http://unstats.un.org/unsd/mi/mi_series_results.asp?rowId=557 (last updated Mar. 16, 2005) (estimate for 2005). 17. See UNFPA, The State of World Population 2005, supra note 1, at 112, (estimate for 2000-2005). 18. Id. at 108. 19. See Engenderhealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002) (estimates for 1992). 20. See Id., tbl. Supp. 2.5, at 55. 21. See World Health Organization (WHO) et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA), 42 (2000) (estimate for 1995). 22. See UNFPA, The State of World Population 2005, supra note 1, at 108. 23. See Save the Children, supra note 15, at 36 (estimate for 1989-2000). 24. See UNFPA, The State of World Population 2005, supra note 1, at 112. 25. See Stanley K. Henshaw et al., The Incidence of Abortion Worldwide, 25 Int’l Fam. Plan- ning Persp. S30 –S38 (Supp. 1999), http://www.agi-usa.org/pubs/journals/25s3099. html (estimate for 1995-1996). 26. See Department of Economic and Social Affairs, United Nations Population Divisions, United Nations World Abortion Policies 1999, U.N. Doc. ST/ESA/ SER.A/178 (1999), http://www.un.org/esa/population/publications/abt/abt.htm (estimate for 1995). 27. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., UNAIDS/World Health Organization (WHO) Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections – 2004 Update: China 3 (2004), http://www.who.int/GlobalAtlas/PDFFactory/HIV/EFS_PDFs/EFS2004_CN.pdf (estimate for 2003). 28. See UNFPA, The State of World Population 2005, supra note 1, at 108. 29. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., supra note 27. 30. See UNFPA, The State of World Population 2005, supra note 1, at 108. 31. See UNFPA, Country Profiles, supra note 2. 32. See UNFPA, The State of World Population 2005, supra note 1, at 108. 33. See Id. at 108. PAGE 30 WOMEN OF THE WORLD:

he People’s Republic of China lies to the west of the East nomic alliances, including the Asia-Pacific Economic Coop- and South China Sea and borders 14 other countries eration (APEC) in 1991, and the World Trade Organization Tincluding India and Russia.1 China has one of the oldest (WTO) in 2001,26 and has a co-operative relationship with civilizations in the world.2 It was founded on October 1, 1949, the Association of Southeast Asian Nations (ASEAN).27 by the Communist Party of China (CPC), under the leadership of Mao Zedong.3 The country was conceived as a socialist nation dedicated to the principles of Marxism-Leninism I. Setting the Stage: and the Maoist ideology of class struggle,4 and was the result The Legal and Political of years of civil unrest and an internal power struggle between the Kuomintang and the CPC.5 The government gained Framework of China popular support by curbing inflation, restoring the economy, Fundamental rights are rooted in a nation’s legal and political rebuilding many war-damaged industrial plants, and unifying framework, as established by its constitution. The principles the country.6 In 1958, Mao launched the Great Leap Forward, and goals enshrined in a constitution, along with the pro- a radical initiative aimed at accelerating industrial growth that cesses it prescribes for advancing them, determine the extent led to one of the deadliest famines in human history.7 to which these basic rights are enjoyed and protected. A con- Mao stepped down from the presidency in 1959 amid stitution that upholds equality, liberty, and social justice can heavy criticism in the aftermath of the Great Leap Forward.8 provide a sound basis for the realization of women’s human Meanwhile, CPC Secretary-General Deng Xiaoping gained rights, including their reproductive rights. Likewise, a politi- political support through his introduction of pragmatic eco- cal system committed to democracy and the rule of law is nomic reforms that ended famine and dramatically increased critical to establishing an environment for advancing these income and productivity.9 To regain power and halt the rights. The following section outlines important aspects of “capitalist corruption” of the masses, Mao in 1966 instigated a China’s legal and political framework. popular rebellion against the leadership, the Great Proletarian Cultural Revolution, plunging the country into political and A. THE STRUCTURE OF NATIONAL GOVERNMENT social anarchy that lasted until his death in 1976.10 Subse- The constitution of China came into force on December quently, Deng Xiaoping assumed leadership of the Chinese 4, 1982, and was amended in 2004 to “respect and protect government and the CPC,11 officially adopting open-door human rights.”28 It establishes a “socialist state under the economic policies guided by capitalist, free-market princi- people’s democratic dictatorship led by the working class and ples.12 He also advanced the principles of the “Four Mod- based on the alliance of workers and peasants.”29 State organs ernizations”—a development strategy aimed at modernizing are required to practice democratic centralism,30 and political industry, agriculture, science and technology, and national power belongs to the people as exercised through their elected defense.13 Deng was succeeded in 1993 by President Jiang representatives in the National People’s Congress (NPC) and Zemin,14 who focused on advancing production, culture, and local people’s congresses.31 the interests of the people of China.15 In March 2003, he was Executive branch succeeded by Hu Jintao.16 The executive branch of the Chinese government consists China has an estimated population of more than 1.3 bil- of the president, the vice president, and the State Council (guo lion,17 approximately 48.5% of which is female.18 More than wu yuan), its premier, and vice premiers.32 The president of 91.1% of the country is Han Chinese, and the remainder of the China is the titular head of state and is nominated, elected, population consists of 56 other ethnic minorities.19 China is and removed by the NPC.33 The president serves for a maxi- officially atheist,20 but prevalent religions include Buddhism, mum of two consecutive five-year terms.34 The president’s Daoism (Taoism), Islam, Catholicism, and Christianity.21 Chi- functions include promulgating NPC decisions regarding na’s official language is Mandarin (Putonghua, based on the statutory enactments, deciding on State Council appoint- Beijing dialect), spoken by more than 70% of the population.22 ments and removals, declaring a state of emergency or war to Other languages include Yue (Cantonese), Wu (Shanghaiese), the public, and conducting foreign diplomatic relations.35 Minbei (Fuzhou), Minnan (Hokkien-Taiwanese), Xiang, Gan, The State Council is the most powerful executive body Hakka dialects, and other ethnic languages.23 in the Chinese government.36 The premier presides over China has been a member of the United Nations since the State Council and has final decision-making power per- October 24, 1945,24 and is a permanent member of the United taining to issues within the State Council’s authority.37 The Nations Security Council.25 China has joined several eco- composition of the council includes vice premiers, state coun- CHINA PAGE 31

cilors, ministers, an auditor-general, and a secretary-general.38 tive Committee, the Education, Science, Culture, and Health Council members serve five-year terms and the premier, vice Committee, and the Civil and Judicial Affairs Committee.57 premiers, and state councilors may serve no more than two The NPC meets in annual sessions.58 Among its powers consecutive terms.39 and functions are approving amendments to the constitution The State Council has undergone multiple restructur- and supervising the enforcement of the constitution; enact- ings to reduce the central government’s involvement in ing and amending national laws;59 electing and removing economic affairs.40 It is currently composed of the General members of the executive branch and leaders of the Supreme Affairs Office, 28 ministries and commissions, 17 directly People’s Court (SPC), Central Military Commission (CMC), affiliated organs, 7 working offices, and a number of news and Supreme People’s Procuratorate (SPP);60 examining and agencies and academic institutions.41 Among the depart- approving national plans for economic and social developments within the State Council are the Ministry of Educa- ment, and for the national budget; deciding on questions of tion (MOE), Ministry of Labor and Social Services (MOLSS), war and peace; and nullifying or amending decisions of its Ministry of Health (MOH), and the National Population and Standing Committee.61 Family Planning Commission (NPFPC).42 The Standing Committee of the NPC is the permanent The NPC oversees the work of the State Council,43 which office of the NPC.62 It is composed of the chairperson, vice has the authority to enact administrative regulations;44 stipu- chairpersons, the secretary-general, and appointed deputies late the responsibilities of ministries, commissions, and local from the NPC.63 The chairperson, vice chairpersons, and people’s governments; formulate measures to execute the gov- the secretary-general form the Council of Chairmen, which ernment budget;45 and implement economic, social, health, handles the daily work of the Standing Committee.64 population, development, and other national policies and The Standing Committee has the authority to inter- plans passed by the NPC.46 It may submit proposals to the pret and supervise the enforcement of the constitution and NPC regarding matters within its jurisdiction.47 national laws;65 annul local and State Council legislation Although the State Council formally answers to the NPC that contravenes the constitution or national laws; supervise and its Standing Committee, in practice it is subordinate to the State Council, the CMC, the SPC, and the SPP;66 and the CPC and tends to implement the principles and policies appoint or remove members of the judiciary and procura- adopted by the party.48 The constitution mandates that “[n]o torate.67 Between NPC sessions, the Standing Committee organization or individual may enjoy the privilege of being may amend national laws; approve necessary adjustments to above the Constitution and the law.”49 However, in practice, national economic and development plans and the state bud- party policies shape the work of the State Council, whose get; appoint State Council and CMC members; and declare a senior members are usually influential party leaders.50 For- state of emergency or war.68 mer President Deng condemned this centralization of power B. THE STRUCTURE OF LOCAL GOVERNMENTS and introduced measures to separate and clarify the powers For administrative purposes, the country is divided into prov- and duties of state and party organs in an effort to improve the inces, municipalities, and autonomous regions.69 China has balance of power.51 Recently, an administrative license law twenty-three provinces (including the disputed province of was adopted to regulate government acts at all levels.52 Taiwan), five autonomous regions (including the contested Legislative branch Tibet Autonomous Region), four centrally administrated The legislative branch of the Chinese government consists municipalities, and two special administrative regions (Hong of the NPC (renmin daibiao dahui), the “highest organ of state Kong and Macau).70 Each division is further divided into power,” and its permanent representative body, the Standing prefectures, counties, districts, and cities, and counties are sub- Committee, which together exercise legislative power for the divided into townships and towns.71 country.53 People’s congresses and people’s governments are established The NPC comprises no more than three thousand depu- in all administrative divisions.72 The structure and authority ties elected to five-year terms by local people’s congresses made of people’s congresses and governments are prescribed by the up of deputies elected by the people of each electoral district, constitution and designated by the central government.73 special administrative regions, national autonomous regions, Executive branch and the armed forces.54 Among the NPC deputies must be The people’s governments serve as the organs of executive an appropriate number of women.55 Special committees power in their respective administrative divisions, subordinate within the NPC assist in discharging legislative responsibili- to the State Council, the people’s government of the preceding ties.56 Special committees include, among others, the Legisla- PAGE 32 WOMEN OF THE WORLD:

division, and the people’s congress at the corresponding divi- special policies and regulations in light of local political, eco- sion.74 People’s governments are led by governors in counties nomic, and cultural characteristics of minority peoples.89 and provinces, mayors in municipalities and cities, and heads of Special administrative regions districts, townships, and towns who are appointed by the cor- China’s constitution empowers the NPC to establish spe- responding people’s congresses for three or five-year terms.75 cial administrative regions (SARs) as it deems necessary.90 The functions and powers of the people’s governments The Hong Kong SAR was established on July 1, 1997, and are determined by the State Council and may include the the Macao SAR was established on December 20, 1999.91 following: implementing resolutions and laws of higher state According to China’s Ministry of Justice, the government organs;76 issuing administrative measures, decisions, and administrates the SARs with the principle of “one country, orders within its authority; amending or repealing inappro- two systems” in order to maintain national unity, territori- priate directives of subordinate departments and governments; al integrity, and prosperity.92 The principle is described as overseeing economic, health, education, family planning, and refraining from imposing socialist policies upon autonomous other affairs in their region; issuing decisions and orders; and regions and accepting their basic laws as well as their current safeguarding citizens’ and women’s rights.77 system of governance.93 Most laws in this report are not appli- Beneath the people’s governments in townships, towns, cable to Hong Kong and Macao.94 and villages are residents’ and villagers’ committees that man- Special economic and development zones age local affairs.78 The primary tasks of these committees, Special economic and development zones were estab- which are led by a chairperson elected by the residents,79 are lished in accordance with economic reforms in the 1980s to to mediate conflicts between local residents; manage pub- facilitate economic development, technological advancement, lic security, health, and social services; and convey residents’ and foreign investment.95 The State Council has established opinions and demands to the people’s government immedi- five major special economic zones and various technological ately above.80 development zones, coastal economic open zones, free trade National and local people’s governments and administra- zones, and other zones where preferential financial and eco- tive bodies (i.e. the Ministry of Health, provincial depart- nomic regulations are employed.96 These regions are often ments of health) are staffed by cadres (ganbu), or civil servants, urban trade centers, populated by well-educated business who range in title from the State Council premier to clerks people who enjoy greater accessibility and choice in public and researchers.81 They are bound by the Civil Servant Law and private health care.97 and the rights and obligations of civil servants as outlined by Judicial branch the Ministry of Personnel.82 The constitution provides for a multitier judicial system Legislative branch composed of the Supreme People’s Court, local people’s courts, The constitution mandates the establishment of a peo- and special people’s courts.98 People’s courts exercise indepen- ple’s congress, the local legislative organ, in all administrative dent judicial powers99 and are answerable to the national or divisions.83 Deputies to people’s congresses are elected and local people’s congresses.100 Their primary function is to safe- removed by their constituents, or by their constituents’ elect- guard the socialist system of government led by the working ed representatives in the people’s congress at the next lower class, uphold the legal system and public order, and “the citi- administrative division.84 zens’ right of the person” and other constitutional rights.101 Self-government of national autonomous areas The Supreme People’s Court (SPC) is the highest judicial National autonomous areas are regions inhabited by eth- organ in China.102 It is composed of a judicial committee nic minorities in concentrated communities and approved and criminal, civil, economic, administrative, and other divi- by the State Council.85 They are classified as autonomous sions.103 The NPC appoints an SPC president,104 and other regions, autonomous prefectures, and autonomous counties, members are appointed by the NPC Standing Committee.105 and are governed by “organs of self-government” in the form The SPC is responsible for supervising the administration of of people’s congresses (legislative) and people’s governments justice and may remand or reverse erroneous decisions by (executive).86 all subordinate people’s courts.106 It has original jurisdiction The people’s congresses and governments of national in national criminal cases,107 civil cases of “major impact,”108 autonomous areas serve functions similar to those of other and “grave and complicated” administrative cases.109 Other local organs of China, with an additional right of autonomy.87 responsibilities of the SPC include making a final review People’s congresses and governments of autonomous regions of death penalty cases110 and issuing judicial interpretations are empowered by the constitution and statutes88 to adopt regarding application of laws and decrees in judicial proceed- CHINA PAGE 33

ings that are equivalent to statutes.111 a healthy development of the socialist market economy.”135 Local people’s courts are divided into higher people’s Disputes over labor, contracts, and property may be submitted courts (HPCs), established in provinces, autonomous regions, for arbitration,136 but disputes over marriage, adoption, guard- and municipalities;112 intermediate people’s courts (IPCs) in ianship, childrearing, and inheritance are explicitly exempt prefectures;113 and basic people’s courts (BPCs) in counties, from the statute.137 districts, and cities.114 Members of local people’s courts are C. THE ROLE OF CIVIL SOCIETY AND appointed and removed by the corresponding people’s con- NONGOVERNMENTAL ORGANIZATIONS (NGOS) gress, or may be recruited through open examination.115 The The Chinese government defines NGOs as “not-for-profit HPCs and the IPCs have jurisdiction over civil,116 administra- organizations formed by citizen volunteers which carry out tive,117 and criminal cases that occur within their designated activities aimed at realizing the common aspirations of their regions,118 and over appeals from subordinate court deci- members in accordance with organizational articles of asso- sions.119 BPCs handle minor criminal, civil, and administra- ciation.”138 Under the law, NGOs are classified as social tive cases,120 establish representative courts (people’s tribunals) organizations, noncommercial enterprises or institutions, and in their localities, and oversee people’s mediation and arbitra- public and private fundraising foundations. The majority of tion committees.121 NGOs in China are labor federations or social service provid- Judicial committees are mandatory bodies within the SPC ers that are supported by state funds or private monies.139 and local people’s courts.122 Their primary task is to provide The Bureau of NGO Administration, housed in the Ministry judicial oversight to ensure correct determination of facts and of Civil Affairs under the State Council, is the government proper application of laws.123 The president of the court pre- agency responsible for registering, approving, inspecting, and sides over the committees, and other members are appointed supervising the operation of NGOs.140 The Chinese govern- or removed by the corresponding people’s congress.124 ment permits NGOs so long as their activities do not inter- Legal aid is available to help indigent citizens to reduce, fere with the interests of the state, oppose the principles of postpone, or avoid litigation costs.125 They may apply for the constitution, “endanger national unity, security or ethnic legal aid in matters such as seeking state compensation, social unity,” or contravene “national interest [or] … prevailing insurance, pension or relief funds, spousal maintenance, and social morality.”141 support payments for parents, grandparents, or children.126 Powerful entities known as people’s organizations are The constitution requires trials to be conducted openly, organized and fully funded by the government and consid- available for public auditing, and open to the press,127 except ered loyal to the CPC.142 People’s organizations are entitled in cases involving state secrets, personal privacy, or juvenile to a 100% tax deduction143 and do not have to be registered offenders,128 or upon request by litigants in divorce and com- or supervised by a government agency.144 These organiza- mercial proprietary cases.129 tions include the All-China Federation of Trade Unions, the Customary forms of alternative dispute resolution China Communist Youth League (CCYL), and the All-China People’s mediation is an integral part of the Chinese judi- Women’s Federation (ACWF).145 cial system as stipulated by the constitution130 and various The CCYL shares a close relationship with the CPC and statutes.131 It aims to settle disputes between citizens out of represents the interests of the youth population on issues such court under the principle of “equality and willingness.”132 as education, employment, and rights.146 The ACWF is a People’s mediation committees are established by and con- government-sponsored organization founded in 1949 “to rep- sist of local residents and have jurisdiction over matters of resent and safeguard women’s rights and interests and pro- commerce, marriage, inheritance, adoption, and property.133 mote equality between women and men.”147 The ACWF The committees operate independent of the court system, acts as a bridge between policymakers and civil society and although they are guided by local people’s governments and is intended to be “an important part of the enabling envi- people’s courts. There were 1.7 million mediated cases of fam- ronment for gender equality in China.”148 The federation ily disputes in 2003, or 40% of the total number of mediated is responsible for drafting legislation that protects women’s civil disputes in the country.134 rights and was recently entrusted with writing the final draft When mediation fails or is inappropriate, arbitration of the Amendments to Law on the Protection of Women’s through third party adjudication may be employed. The Arbi- Rights and Interests (“Women’s Rights Law”).149 The ACWF tration Law was formulated “with a view to ensure fair and has helped formulate policies and laws on women’s health and timely arbitration of economic disputes, reliable protection to popularized related programs and measures.150 Over the years, the legitimate rights and interests of parties concerned, and PAGE 34 WOMEN OF THE WORLD:

the ACWF has launched several projects to promote public following international legal instruments: the Convention on awareness of women’s health issues and to encourage scientific the Elimination of Discrimination Against Women (CEDAW), research, and has conducted surveys to collect information on the Convention on the Rights of the Child (CRC), the Inter- women’s health for use by government agencies.151 national Covenant on Economic, Social, and Cultural Rights Although all domestic NGOs in China are required to (ICESCR), the Convention Against Torture and Other Cruel, register with the bureau, many grassroots NGOs are unable Inhuman, or Degrading Treatment or Punishment (CAT), the to find a sponsoring government agency and therefore oper- International Convention on the Elimination of All Forms of ate without registration.152 The Ministry of Civil Affairs Racial Discrimination (CERD), and the Optional Protocol estimates that out of seventy thousand NGOs in China, to the CRC on the Sale of Children, Child Prostitution, and only about twenty thousand were officially registered with Child Pornography.170 The Chinese government has submit- the government.153 ted reports to the committees that monitor implementation of these treaties.171 China has signed, but not ratified, the Inter- D. SOURCES OF LAW AND POLICY national Covenant on Civil and Political Rights (ICCPR) and Domestic sources the Optional Protocol to the Convention on the Rights of the The primary domestic sources of Chinese law are the consti- Child on the Involvement of Children in Armed Conflict.172 tution, legislation, and judicial interpretations of law. China hosted the Fourth World Conference on Women in The constitution is fundamental law and has supreme legal Beijing in 1995, and attended the International Conference on authority.154 It establishes China as a country governed by the Population and Development (ICPD) in September 1994, the rule of law.155 The constitution provides fundamental rights ICPD+5, and Beijing+5.173 At the Millennium Summit in for all citizens, including equality before the law;156 freedom of 2000, China joined 189 countries in adopting the Millennium speech, assembly, association, religion, and marriage;157 free- Declaration outlining eight major Millennium Development dom from unlawful arrest or detention, libel, and infringe- Goals, including eradicating poverty, establishing universal ment of physical integrity;158 and the right and duty to work primary education, promoting gender equality, improving and receive education.159 It also directs the state to respect and maternal health and child mortality rates, and combating protect human rights,160 encourage economic development, HIV/AIDS.174 supply social assistance and benefits,161 and create conditions to ensure that citizens enjoy their rights.162 The constitution guarantees women’s equality in political, II. Examining economic, cultural, social, and family life.163 It charges the government with the responsibility to protect the legitimate Reproductive Health rights and interests of women and to prohibit maltreatment and Rights of women and children.164 The constitution further prohibits discrimination or oppression on the basis of ethnic- In general, reproductive health matters are addressed through ity.165 However, constitutional rights may be abrogated for a variety of complementary, and sometimes contradictory, the “interest of the state, of society, or of the collective,” or for laws and policies. The scope and nature of such laws and national security and as punishment for crimes.166 policies reflect a government’s commitment to advancing the Legislation enacted by the NPC, the State Council, and the reproductive health status and rights of its citizens. The fol- local people’s congresses is subordinate to the constitution. lowing sections highlight key legal and policy provisions that Another formal source of domestic law is judicial inter- together determine the reproductive rights and choices of pretation formulated by the SPC or the SPP on questions women and girls in China. concerning specific applications of law in judicial practice.167 A. GENERAL HEALTH LAWS AND POLICIES All lower courts (including HPCs, IPCs, and BPCs) are com- The constitution of China guarantees “the protection of the pelled to follow judicial interpretations; however, case rulings people’s health” through the development of medical and health by a higher court are not binding on lower courts because services; the promotion of modern and traditional Chinese decisions are made on a case-specific basis.168 medicines; encouragement and support for the establishment International sources of medical and health facilities by rural economic collectives, The Standing Committee of the NPC, represented by the state enterprises and institutions, and neighborhood organiza- president, ratifies and abrogates treaties and important agree- tions; and public health activities.175 China’s Civil Law further ments concluded with foreign states.169 China has ratified the provides citizens with the “right of health and life.”176 CHINA PAGE 35

Objectives health awareness in rural areas. The National Plan for Health China’s health-care policies are formulated by the MOH Education and Promotion (2005–2010) calls for a rural health under the leadership and directives of the NPC and the State education campaign, with the goal of disseminating health Council. They ﬁt within the broader framework of the Tenth information among rural residents, and raising their aware- Five Year Plan (2001–2005) and the Decision of the CPC ness of basic health-care issues from 36% to 60%–80%, and of Central Committee and the State Council Concerning Public maternal and infant health-care issues to 80% by 2010.182 Health Reform and Development as adopted in 1997.177 The The Chinese government encourages and supports the MOH sets forth the following health-care strategies: establishment of health facilities by rural economic collec-

■ accelerate the development of the public health-care tives, state enterprises, and neighborhood organizations.183 system; The central government is directed to prioritize and provide

■ strengthen prevention and treatment of serious ill- additional ﬁnancial resources to support the development of nesses by implementing, among other measures, the health services for the Western Region, composed mainly of Law on the Prevention and Treatment of Infectious impoverished and ethnic minority districts.184 Eastern prov- Diseases;178 inces and municipalities are required to play an active role

■ introduce a quality health-care system in rural areas; in the development of the Western Region, providing ﬁnan-

■ initiate urban health-care system reforms under the cial assistance in order to improve the health services of low- guidance of the State Council’s Directives on Deep- income communities in the west.185 ening Urban Health-Care System Reforms; Infrastructure of health-care services

■ strengthen public security and health administration; Government facilities

■ encourage improvements in maternal and infant China has only 2% of the world’s medical resources, yet health care; it provides enough health-care resources to treat 22% of the

■ widely disseminate information on how to prevent world’s population.186 The government is the largest health- chronic, noncommunicable diseases; care provider in the country; in 2002, it funded 306,038

■ support the advancement of medical technologies, medical institutions made up of 63,858 urban and township improve the quality of medical schools throughout hospitals, 365 sanatoriums, 219,907 clinics, 1,839 specialized the country, and offer better training and education prevention and treatment centers, 3,580 epidemic preven- to medical personnel, particularly those stationed in tion stations, and 3,067 maternal and infant health-care rural areas; institutions.187 In sum, these facilities are staffed by 5.6 mil-

■ promote the development of traditional Chinese lion medical and technical personnel, including 2.4 million medicine; certiﬁed physicians and physician’s assistants, and 1.3 million

■ increase collaboration and information sharing with registered nurses.188 international health agencies; and The government plans to fully staff and equip all pro-

■ assist local health departments in their implementa- vincial medical and health institutions by 2010.189 Another tion of national health-care programs, with a focus on objective within this timeframe is to improve development long-term development and the sustainable distribu- and training for rural and urban doctors, preventive care tion of resources.179 personnel, medical technicians, laboratory technicians, and The MOH is also responsible for formulating national more than ten thousand infectious disease prevention and health plans such as the National Plan for the Development control personnel, at or above the county level.190 of Rural Primary Health Care (2001–2010), the National The Regulations on Management of Medical Service Action Plan for Raising Quality of Birth Population and Organizations and its Rules for Implementation regulate Reducing Birth Defects (2002–2010), and the National Plan organizations that provide health-care services.191 These for Health Education and Promotion (2005–2010).180 It is facilities include all types of hospitals, such as cooperative also responsible for implementing health components of the care, Chinese medicine, joint (eastern/western) practice, central government’s long-term national plans as stipulated in minority medicine, and specialty and rehabilitative care; the National Plan for the Development of Chinese Women maternal and infant health-care centers; urban, township, (2001–2010) and the National Plan for the Development of rural, and street-level health clinics; and other health-care Chinese Children (2001–2010).181 centers, stations, and organizations.192 A primary focus of several national programs is improv- Medical facilities must also comply with national stan- ing the rural health-care system and addressing the lack of dards and submit to inspection, approval, licensure, reg- PAGE 36 WOMEN OF THE WORLD:

istration, and periodic appraisals by the national or local Employees’ payments go directly into personal accounts health department.193 while the employer’s premium payments are divided Privately run facilities between personal accounts, which mostly pay for outpatient Private health facilities, which were outlawed during the services, and social security program funds, which usually Cultural Revolution (1966–1976), rebounded in the 1980s and cover hospitalization fees and treatment for chronic ill- shifted Chinese health care from a system of centralized pub- nesses.207 Retirees are exempted from premium payments lic health funding to one that was market-oriented.194 Since and they generally receive medical services for lower fees.208 then, the government has left health-care costs to individuals. Free medical service is no longer provided for civil servants As a result, out-of-pocket costs for health care have soared in and employees of public institutions; instead, they are now China and coverage has become increasingly inequitable.195 entitled to medical subsidies.209 In addition, employers are Financing and cost of health-care services encouraged to provide supplementary medical insurance for Government financing their workers and are allowed to write these costs off as a The government’s budget for public health care has portion of their operating expenses.210 dropped substantially since the adoption of a decentralized, Certain reproductive health services such as midwife market-oriented system. The government’s health expendi- care and contraceptive services are provided free of charge. ture shows a progressive decline from 32% of the total budget (See “Reproductive Health Laws and Policies” for in 1986, to 14% in 1993, and 5.8% in 1996.196 In 2001, the total more information.) budgetary allocation for health undertakings by the govern- Private and international financing ment at all levels was 80 billion Chinese Yuan (CNY) (USD The Chinese Ministry of Health has several collabora- 9.67 billion), approximately 4.2% of the total budget.197 tive programs with the World Health Organization (WHO), The most significant impact can be seen in the erosion of including programs on reproductive health, nutrition, vac- the rural Cooperative Medical System (CMS), which insured cination, health promotion, and health care delivery. For 90% of the rural population at the peak of its popularity in 2002–2003, WHO spent USD 11.5 million on these programs, 1970, but only about 7% by 1993.198 CMS is funded through setting aside 1.1% (USD 122,445) for reproductive health care community financing and bolstered by a system of mutual and 2.7% (USD 312,416) for sexually transmissible infections, assistance that provides health stations, paid village doctors including HIV/AIDS.211 to deliver preventative, primary, and secondary health care, The United Nations Population Fund (UNFPA) has medications, and partial reimbursement for patients receiving assisted China since 1980.212 Following the ICPD in 1994, services at township and county hospitals.199 Economic and the Chinese government and UNFPA discussed new initia- agricultural reforms in the early 1980s led to the disintegration tives that would help realize ICPD principles.213 Under the of the cooperative organizations that funded the CMS, lead- fourth UNFPA program in China, birth targets and quotas ing to the decline of health care in rural areas.200 were lifted in the 32 counties in which UNFPA maintained In 1998, China promulgated the Decision on Establish- its program.214 This program marked a major shift from a ing a Basic Medical Insurance System for Urban Employees, government-mandated family planning program to one that instituting an urban health-care system that guarantees basic integrated the needs and desires of individuals in the target medical insurance for employees under the jurisdiction of the counties.215 As a result, local advocacy networks were created Ministry of Labor and Social Services (MOLSS).201 By 2002, and officials were trained to respect the right of individuals 97% of prefectures and cities had developed basic medical to make their own decisions about their reproductive lives insurance programs (BMIPs).202 BMIPs cover all employ- without coercion.216 ers and employees in cities, government organizations, enter- Cost prises, and private nonenterprise units, as well as freelance Total individual expenditure for public health in 2003 was workers.203 Participants in BMIPs receive medical services CNY 311.33 billion (USD 37.6 billion).217 Urban households from public hospitals, which are then reimbursed on a fee- spend about 7% of their annual household expenses on medi- for-service basis according to a fee schedule established by the cine and medical services, costing approximately CNY 430.5 government.204 As of 2004, more than 109 million people (USD 52) per person.218 In rural areas, annual average indi- were participating in BMIPs, of whom 79.75 million were vidual spending on health care ranges from CNY 57.54 (USD active workers and 29.27 million were retirees.205 7) to CNY 201.72 (USD 24), which is 5.76% of total living Insurance premiums are paid by both the employer, at expenses for rural households.219 The MOH reports that fees 6% of total wages, and employees, at 2% of total wages.206 for government-sponsored medical treatments have increased CHINA PAGE 37

by about 8.2% annually since 1999.220 Its surveys indicate that research, production, trade, use, supervision, and manage- almost 50% of Chinese citizens cannot afford medical treatment of modern and traditional medicines, with special pro- ment when they are sick, and about 30% are not hospitalized visions for narcotics, psychotropic substances, toxic drugs despite medical necessity.221 for medicinal use, radioactive drugs, and traditional Chinese Almost 50 million people participated in employment medicines.237 The Pharmaceutical Administration Law was injury insurance programs in 2004, and most provinces are revised in 2001 and formulated to enhance the supervision formulating related insurance plans in accordance with the and control of pharmaceuticals, and ensure their quality, effi- 2004 Regulations on Insurance for Work-Related Injuries.222 cacy, and safety “to safeguard the health and legal rights and In 2002, social insurance and welfare funds for retirees paid interests of the people.”238 Pharmaceutical manufacturers, CNY 266 million (USD 32 million) in medical care expenses, retailers, and dispensaries in medical organizations must be an increase of 20% from the previous year.223 examined, approved, and licensed by the State Food and Drug In an effort to address rising health-care costs, the Chinese Administration (SFDA) or face fines of CNY 10,000 to CNY government has promised to standardize fees for medical ser- 30,000 (USD 1,208 to USD 3,624).239 vices and medicines. In China, medicines account for 70% of Manufacturers may only produce pharmaceuticals, with total health-care costs, compared with 6%–12% in Western the exception of some traditional Chinese medicinal herbs countries.224 Essential medications must be sold in accordance and prepared formulas, after obtaining the registered docu- with the prices set forth or suggested by the government, while ment of approval issued by the SFDA or the MOH.240 New nonessential medicines should be priced reasonably, guided by medications must undergo clinical testing approved by the the principles of fairness, rationality, honesty, good faith, and State Council and examination and evaluation by the SFDA, adjustment for the quality of the medication.225 Violators are and comply with pharmaceutical standards set forth by the subject to confiscation of illegal gains, fines of up to five times SFDA’s Pharmacopoeia Committee.241 Drugs classified as the amount of the illegal gains, suspension of their business prescription medications and certain nonprescription medi- license, and possible civil liability.226 cations may be dispensed only by licensed pharmacists or Medical facilities are required by statute to charge patients other legally certified pharmaceutical technicians.242 Phar- according to the prices fixed by the local people’s government maceutical retailers and dispensaries are prohibited from or its pricing department.227 Medical organizations or per- substituting or altering prescriptions written by doctors, and sonnel that charge more than what they are allowed are sub- must reject prescriptions containing incompatible substances ject to severe fines, closure, administrative penalties, and/or or excessive dosages.243 suspension of their operating or practicing license.228 Regulation of health-care providers The Maternity Insurance Scheme was introduced by the Health-care providers are regulated by the Medical Prac- central government in 1988 and is currently available in 29 titioner Law, Measures for the Management of Nurses, Law provinces, autonomous regions, and municipalities.229 In on Maternal and Infant Health Care, Measures for Adminis- 2003, more than 36 million female workers were covered by trating Traditional Medical Practitioner and Specialty Medi- maternity insurance, and about 360,000 pregnant employees cal Practitioner Qualification Exams, and the Regulations on received these benefits.230 The government aims to achieve Management of Medical Service Organizations and Rules for 90% maternal insurance coverage for eligible female workers its Implementation.244 by 2010.231 The scheme provides female workers with mater- The Medical Practitioner Law sets standards for physi- nity subsidies and covers the costs of medical and health-care cians and physician assistants regarding their qualifications, services throughout pregnancy and during maternity leave,232 standards of practice, assessment, training, and legal respon- which must be a minimum of 90 days.233 Most employees of sibilities.245 Exams for physician licenses are formulated by urban enterprises and some female employees of government the MOH, while physician assistant qualification exams are agencies and public institutions are covered by the scheme.234 prepared by the health administration at or above the provin- Employers, not individual employees, are responsible for pay- cial level.246 The exams are administered to applicants with ing maternity insurance premiums, and organizations not par- appropriate medical education and practical training.247 Upon ticipating in the scheme must provide comparable maternity receipt of the government’s medical practitioner license, phy- benefits.235 Failure to pay maternity benefits may result in sicians must register with the central government’s medical administrative penalty or civil liability if harm was caused.236 practitioner registration system in order to practice medicine Regulation of drugs and medical equipment legally.248 Licensed medical practitioners are granted the right Several laws and regulations establish guidelines for the to provide health-care services within their registered field.249 PAGE 38 WOMEN OF THE WORLD:

They are expected to abide by relevant laws; fulfill profes- law mandates that provincial people’s governments must sional responsibilities and adhere to professional ethics; care establish technical appraisal committees under the supervision for, respect, and protect patients and their privacy; improve of the local maternal and infant health-care offices within the and advance skills and techniques; and provide medical edu- local health department.261 These committees are responsible cation to patients.250 for inspecting the staff, equipment, and services of a medical National strategies for improving the regulation of health- facility to determine whether a maternal and infant health- care providers include the prosecution of medical personnel care service permit will be issued.262 The permit is valid for who accept “red pockets” (bribes), those who charge unrea- three years and is renewable upon reassessment.263 Mater- sonable and unlawful fees, and those who violate other norms nal and infant health-care workers are required to fulfill the of medical ethics.251 Furthermore, the government is commit- conditions of the Basic Standards for Specialty Maternal and ted to banning unlicensed medical practitioners, technicians, Infant Health-Care Technical Services, and hold a license for and facilities; the production and sale of counterfeit medicine; maternal and infant health-care technical services or a license unlawful blood collection and sale; and food contamination, for midwifery.264 Health-care workers can receive a maternal in accordance with the State Council decision concerning and infant health-care technical service license upon passing further strengthening food safety.252 a national qualification exam.265 One of the MOH’s key strategies for improving health care Personnel conducting premarital health examinations must in China is the execution of the National Plan for the Devel- be licensed medical practitioners with at least three years of opment of the Nursing Profession (2005–2015).253 The 1993 clinical experience in obstetrics or gynecology (OB/GYN)266 Measures for the Management of Nurses were introduced to and must hold a maternal and infant health-care technical ser- promote the field of nursing, accelerate the development of vice license.267 These exams, which screen engaged couples nursing science, strengthen the skills of nursing profession- for hereditary illnesses, infectious diseases, major psychiat- als, and recognize the important work of nurses in medical, ric disorders, and reproductive health problems,268 must be preventative, and rehabilitative health care and treatment.254 conducted at facilities with a maternal and infant health-care The measures outline the educational, clinical, and clerical technical service permit.269 These facilities must be equipped requirements for practicing nurses.255 To receive a license, and staffed according to the specifications outlined in the nurses must pass a qualifying exam administered by the local Standards for Premarital Health-Care Work (Revised) and the government.256 Afterward, nurses must register with the Basic Standards for Maternal and Infant Health-Care Techni- county’s health department; registration is subject to renewal cal Services.270 and assessment every two years.257 The Measures for the Management of Prenatal Diagnostic Traditional medicine refers to traditional Chinese medi- Technology regulate health-care workers who conduct pre- cine as well as the medical traditions of the Tibetan, Mon- natal consultations and examinations for diagnosis of genetic golian, and Uygur minority populations.258 Practitioners of or gestational birth defects.271 According to the measures, all traditional medicine are subject to standards and licensing prenatal screening technicians and clinicians must be qualified procedures similar to those applied to mainstream medical and licensed by local health departments, satisfy the condi- providers. To receive a license, they must be secondary school tions of the Basic Standards for Prenatal Screening Technician, graduates (or equivalent); complete three years of apprentice- and hold a maternal and infant health-care service license.272 ship under a practitioner with at least twenty years of clinical In addition, physicians must have supplementary training in experience; obtain a practical training completion certificate ligation surgery (sterilization) and abortion prior to perform- from the provincial department of Chinese medicine; under- ing these operations.273 Medical facilities providing prenatal take a clinical residency for at least two years under the super- services must have an obstetrics department staffed by trained vision of a licensed medical practitioner at a medical facility; personnel and furnished with appropriate equipment, as well and successfully complete a provincial qualification exam.259 as a committee of medical ethics, and must comply with the Specific laws apply to health-care workers and medical basic standards for prenatal screening facilities.274 facilities in the field of maternal and infant health care. Medi- Midwives must undergo relevant training, examination, cal facilities that perform premarital health examinations, and licensure by the county health department or authorized genetic disease diagnosis, prenatal consultations, sterilization health-care organizations.275 They must also have facili- surgeries, and abortions must adhere to specific standards set tated at least five births under the supervision of a licensed forth by the MOH and obtain a maternal and infant health- physician, carry sterile medical supplies, be able to identify care service permit from the local health department.260 The high-risk pregnancies and obstetric emergencies, follow the CHINA PAGE 39

Regulations for Rural Midwife Deliveries, and keep written part of its “have fewer children and prosper quicker” poverty medical records.276 Both midwives and medical institutions alleviation project, and improve the quality of the popula- that perform deliveries must issue birth certificates and report tion.288 The government rewards families that observe its any perinatal deaths, stillbirths, infant deaths, or babies with family planning policy and has a national system of Social birth defects to the provincial health department.277 Support for Some Rural Families Practicing Family Planning, Organizations that provide family planning technical ser- which was to expand to more areas in 2005.289 vices must adhere to standards set by the State Council, obtain Regulation of reproductive health technologies a license from the local health department that is subject to Encouraging research and development of new reproduc- renewal every three years, and submit to regular inspections.278 tive techniques and medicine has been identified as key to the Patients’ rights effective implementation of the Regulation on Administration China’s policies on patients’ rights are outlined in various of Family Planning Technical Services.290 In an effort to cor- laws and regulations. The Criminal Law provides criminal rect the gender imbalance that has ensued from sex-selective detention or a maximum of three years’ imprisonment for abortion, the Population and Family Planning Law strictly pro- medical workers who cause death or severe harm to the health hibits reproductive health and family planning organizations, of the patient through gross negligence.279 In addition, per- service providers, prenatal screening centers, and other medical sons unlawfully practicing medicine (including performing facilities from conducting tests to determine the gender of the family planning surgeries) without obtaining the necessary fetus unless medically necessary.291 The law also prohibits pro- licenses are subject to fines, criminal detention, public surveil- viders from performing sex-selective abortions.292 lance, or, in the event that death is caused, no fewer than ten Human assisted reproductive technologies (ART) are years’ imprisonment.280 Hospitals must respect the legitimate in high demand in China, since 10% of Chinese couples of rights and interests of patients to have medical care, informed childbearing age suffer from infertility.293 In 2001, the Min- consent, freedom of choice, and privacy; to file complaints; istry of Health issued a series of statutory measures regarding and to practice their cultural and religious beliefs.281 The Law the safety, standards, management, and use of ART, including on Maternal and Infant Health Care also sets forth provisions artificial, intravaginal, intracervical, intrauterine, or intratubal dealing with patients’ rights. (See “Maternal health” for more insemination; in vitro fertilization; and embryo transfer.294 information.) Additionally, family planning agencies must At the end of June 2005, the ministry approved 46 medical receive patient consent; provide safe and effective services and institutions as providers or developers of ART and six medical medications; and ensure patient safety when performing con- facilities to establish sperm banks.295 traceptive services, sterilization procedures, special examina- The Standards, Ethical Principles, and Measures for the tions or treating particular diseases.282 Management of ART authorize their use for medical treat- No specific laws address the confidentiality of pregnancy- ment, as long as it adheres to the government’s family planning related information. Under the Measures for the Manage- policy, ethical principles, and other relevant laws.296 Couples ment of Prenatal Diagnostic Technology, both the pregnant with infertility, a family history of genetic diseases, sexu- woman and her family members have access to information ally transmissible infections, or other physiological ailments pertaining to the pregnancy.283 Furthermore, the decision to preventing natural conception are eligible to receive ART continue or terminate the pregnancy after prenatal screenings services.297 Single women are prohibited from using ART, is to be made jointly by “man and wife.”284 Family members but it is unclear whether this rule also applies to widowed may also grant permission for medical facilities to conduct an or divorced women.298 The law forbids surrogate mother- autopsy of an aborted fetus.285 However, premarital health hood, which is thought to involve too many legal, ethical, and examination records must be properly stored to maintain moral complications.299 The marketing of gametes, zygotes, individual confidentiality.286 Statutes stipulate that HIV status and embryos is illegal, and financial incentives may not be must be kept in the strictest confidence, and medical provid- offered for donors, although the law does permit the alloca- ers are prohibited from releasing any HIV-positive patient’s tion of social benefits and subsidies for work, transportation, personal information without consent.287 and health care for donors.300 ART service providers must ensure that donors and recipi- B. REPRODUCTIVE HEALTH LAWS AND POLICIES ents are informed about the procedures and possible dangers China’s reproductive health laws and policies are formulated involved in the utilization of the technologies, and written con- to complement its strategy on population control and devel- sent from the couple must be provided prior to the commence- opment, promote family planning, maintain low birth rates as ment of any procedure.301 ART providers are also barred from PAGE 40 WOMEN OF THE WORLD:

manipulating the DNA of gametes302 and may not conduct documents indicating that they understand and are willing to medically unnecessary sex-selection or sex-determination.303 comply with the doctor’s recommendation.318 Violations of these prohibitions may result in criminal The only recourse available to couples seeking to dispute punishment.304 their status as unsuitable for marriage or reproduction is to Medical facilities providing ART must receive permis- petition local health authorities for a medical reappraisal.319 sion to do so from the Ministry of Health and the provincial Couples who have been advised to delay marriage and have departments of both health and family planning.305 Organi- been educated on the marital and reproductive consequences zations in violation of ART laws are punished according to the of the disease(s) in question are permitted to marry if they Regulations on Management of Medical Organizations and insist.320 Physicians are required to respect the couple’s wishes Rules on its Implementation.306 and note on their premarital exam certiﬁcates that “medical Government monitoring of reproductive health management is recommended.”321 The Law on Maternal and Infant Health Care and its Family planning Implementation Measures mandates premarital health exams General policy framework for engaged men and women to check for hereditary illnesses, Chinese citizens have a constitutional obligation to practice infectious diseases, major psychiatric disorders, and reproduc- family planning.322 Husbands and wives also have a duty to tive health problems.307 If these conditions are discovered, practice family planning created by the Marriage Law.323 The the examining physician will issue a medical “suggestion” of primary objectives of the Population and Family Planning Law “unsuitable for marriage,” “unsuitable for reproduction,” or are to promote family planning and to protect citizens’ legiti- “delay marriage.”308 mate rights and interests. To achieve these ends, the law pro- The 2003 amendment to the Regulation on Marriage poses a number of strategies, including some of the following:

Registration abolished compulsory premarital medical exams ■ establish premarital health care and maternal and for marriage registration, but the Implementation Measures infant health-care systems to prevent and reduce the for the Law on Maternal and Infant Health Care stipulate that incidence of birth defects and improve the health of local marriage regulations may continue to mandate premari- newborns;

tal exams;309 consequently, some still do.310 Since the govern- ■ increase access to family planning services throughout ment lifted the universal requirement for mandatory premarital the country;

medical exams, the number of couples who voluntarily under- ■ through health-care facilities, provide the public with go them has decreased dramatically.311 However, premarital basic population and family planning services, preg- exams are still greatly encouraged by the government and nancy checkups and follow-up for married women identiﬁed as a strategy in several national health plans.312 of reproductive age, and technical services relating to Physicians who perform premarital exams are required to family planning and general reproductive health;

consult with couples if a serious disease is detected.313 Cou- ■ have family planning service workers guide citizens ples may be deemed “unsuitable” for marriage or reproduc- to choose safe, effective, and appropriate methods of tion by a physician on grounds including mental illness and contraception; and

hereditary or degenerative disease.314 When a diagnosis indi- ■ encourage research and the widespread use of new cates that childbearing would be medically inappropriate, the family planning technologies and products.324 couple may be married only after taking long-term contra- The Regulations for the Management of Family Planning ceptive measures or undergoing sterilization.315 Couples may Technical Services were introduced in 2002 to strengthen be advised to postpone marriage if one party is suffering from administration of family planning services, control population the infectious phase of a contagious illness, an acute phase of a quantity, improve the quality of the population, and utilize mental disorder, or another debilitating medical condition.316 technological and medicinal advances to increase the capacity In cases of nonsymptomatic carriers of infectious and viral of family planning services.325 The regulations aim to protect diseases who wish to be married, physicians must provide the right of citizens to reproductive health care, the right of full disclosure about the illness and make recommendations informed choice in the use of contraceptives, and the right to on protective, preventive, and treatment measures.317 All pre- receive suitable family planning technical services.326 Under marital medical diagnoses must be supported with a scientiﬁ- the regulations, citizens are entitled to the following services cally based explanation, physicians must provide information from urban and rural family planning facilities:

about the possible repercussions of any medical conditions ■ reproductive health education, consultation, and on marital and reproductive life, and the couple must sign advocacy; CHINA PAGE 41

■ medical examination, consultation, guidance, and Since signing the ICPD Programme of Action, the Chi- follow-up regarding contraceptive methods and nese government has altered its national strategy for popu- related issues; lation control in order to curb excessive population growth ■ contraceptive procedures such as insertions of intra- and maintain a low and stable fertility rate. In early 2000, uterine devices (IUDs), sterilization surgeries, abor- the National Population and Family Planning Commission tions, and follow-up visits, exams, and consultations; of China (NPFPC) officially changed the focus of its national and strategy for population and family planning from a fertil- ■ other reproductive, contraceptive, and infertility ity control regime to a more client-centered program that treatments authorized by the MOH and the State ensures individuals receive quality reproductive health care 327 Council. and make informed choices about their reproduction.338 Under the Population and Family Planning Law, specific This new focus stems from a 1995 pilot project introduced regulations and plans for population and family planning are in an explicit commitment to ICPD objectives that addressed formulated by the provincial, municipal, and autonomous quality of care services in 11 districts in eastern China.339 The regional people’s congresses and implemented by local fam- goals of these pilot projects were to meet the diversified needs ily planning departments, villagers’ committees, and residents’ of people, increase the availability of information to ordi- 328 committees. The law prescribes family planning as a fun- nary citizens, standardize service and operational procedures, 329 damental state policy and advocates one child per couple. improve the competence of service providers, and establish In general, local regulations permit married couples with- a surveillance system that could be used to monitor quality out children to make their own arrangements to have a first of care services.340 The program has since been introduced 330 child. Within three months of a pregnancy, couples must throughout China, with 827 counties participating in 2001, bring their residency papers, marriage certificate, premarital covering more than 40% of the country, including some of health-care exam certificate, and a letter from the work unit the poorest areas in the Western Regions.341 or the villagers’ committee to the local people’s government or Contraception 331 family planning department to register for a “birth permit.” Primary contraceptive methods used in China are IUDs, In limited circumstances, married couples may petition the sterilization, condoms, oral pills, injections, implants, and local family planning department for permission to have a spermicides. The most popular contraceptive method is the second child. IUD, used by 45.5% of women in China.342 An official 2001 Pregnancies for a second child without government survey indicates contraceptive prevalence at 86.9% among approval or in violation of local laws and regulations must be married women of childbearing age, and 99.1% of those terminated under the directives of family planning technical women utilized modern contraceptive methods.343 332 service personnel. In some provinces, the local villagers’ Contraception laws and policies or residents’ committee are permitted to “take measures” and According to the Population and Family Planning Law, 333 establish a deadline for terminating the pregnancy. Couples family planning should be practiced “chiefly by means of con- who refuse to undergo an abortion are given a warning, and traception,” and the government is charged with creating the if the abortion is not performed, the couple may be fined up necessary conditions for its citizens to knowingly choose safe, 334 to CNY 2,000 (USD 242). Citizens who have children effective, and appropriate contraceptive methods.344 The law without permission from the government must pay social obligates citizens of reproductive age to adopt contraceptive compensation fees, must assume financial responsibility for all methods and to accept technical services and guidance for maternal health-care costs, and are denied maternity insur- family planning.345 ance benefits for leave and subsidies; rural citizens are refused Several types of emergency contraception are readily avail- 335 future increases in land allocation. able to Chinese women and adolescent girls through the gov- Couples who volunteer to have only one child are awarded ernment’s family planning facilities.346 At least one type of a certificate of honor that entitles them to some of the follow- emergency contraceptive pill is sold by drugstores and phar- ing: award money, subsidies for child care, preferential treat- macists without a prescription.347 336 ment in land allocation, and extra social security benefits. Regulation of information on contraception Married couples of childbearing age may also enter into a The major sources of contraceptive information are the family planning contract with their work unit (state-owned Information, Education, and Communication (IEC) compo- 337 enterprises) for additional benefits and services. (Refer to nent of family planning programs and friends and relatives.348 “Population” for more information.) Knowledge of modern contraceptive methods among Chi- PAGE 42 WOMEN OF THE WORLD:

nese women has increased significantly since the govern- practice has been reported in some areas.363 ment implemented the Programme of Action of the ICPD in The government has promulgated regulations which pro- 1994.349 Surveys indicate that 86% of Chinese women know vide free sterilization services for married couples of child- of modern contraceptive methods, 83% have information bearing age in rural areas.364 Citizens who fail to limit the about reversible family planning methods, 94% have informa- number of children they have are required to pay social com- tion about condoms, and 98% have information about IUDs pensation fees that can range from one-fifth to ten times and female sterilization.350 the average worker’s annual net income, in addition to other The Population and Family Planning Law instructs gov- financial penalties.365 ernment departments in charge of family planning, educa- The government offers a number of incentives designed tion, science and technology, culture, health, civil affairs, press, to encourage individuals to undergo sterilization. Under publishing, broadcast, and television to organize and develop the Population and Family Planning Law, individuals who information and education pertaining to population and fam- undergo “surgical procedures” for family planning are grant- ily planning.351 ed extended leave and extra benefits from their workplace.366 Regulations issued in 1989 by the State Administration of Other laws condition the right to marry upon sterilization: Industry and Commerce ban advertisements of sex products under the Maternal and Infant Health Care Law, if a doctor which are defined as products that treat sexual dysfunction finds that a couple is at risk of transmitting disabling con- or that “assist in sexual life,”352 including condoms.353 How- genital defects to their children, the couple may only mar- ever, the ban against advertising condoms was lifted in 2004 ry if they “voluntarily” undergo long term contraception under the urging of the NPC, when the Chinese government or sterilization.367 adopted a policy of encouraging condom use for the preven- Government delivery of family planning services tion of HIV/AIDS.354 China utilizes a five-tier network to provide family plan- The Regulations for the Management of Family Planning ning services at the national, provincial, prefectural, county, Technical Services stipulate that citizens have the right to and township levels.368 The network covers 95% of all urban information on the different types of contraceptive methods and rural areas with more than 2,500 county technical ser- available and the right to make informed choices regarding vice units, 140,000 technical service staff, and 4 million fam- their use.355 ily planning specialists, excluding volunteers and part-time Sterilization workers in villages.369 Sterilization was utilized by 36% of Chinese women in 2002, The law emphasizes the importance of contraception to and ranks as the second most popular family planning method, the implementation of family planning programs in the coun- according to the NPFPC.356 Comparatively, only 9.24% of men try.370 Compulsory population control techniques were used undergo sterilization as a strategy for family planning.357 as a strategy by the government from the 1970s until the early Sterilization: laws and policies 1980s, leading to 18 million IUD insertions, 21 million ster- Sterilizations performed for the purpose of family ilizations, and 14 million abortions,371 but the public outcry planning or in accordance with the Law on Maternal and that ensued forced the government to scale back its aggres- Infant Health Care are provided free of charge.358 Female sive methods and implement more “realistic” and “reasonable” sterilization operations require the informed and written family planning strategies.372 consent of the patient, and if the woman is unable to understand The current Population and Family Planning Law states the procedure or is illiterate, responsibility for consenting that citizens must be informed of “safe, effective, and appro- to the operation and signing the consent form falls to the priate contraceptive methods” and that the “[s]afety of woman’s legal guardian.359 The Population and Family Planning recipients of birth control procedures must be ensured.”373 Law stipulates that couples with children are “encouraged” to Married couples of childbearing age who practice family choose long-acting contraceptive methods.360 planning receive basic family planning technical services free The Chinese government formally prohibits the use of of charge.374 Couples who abide by family planning laws are physical coercion to compel persons to submit to abortion rewarded with monthly stipends, extra land for agricultural or sterilization.361 There are reports of physically coerced use, preferential treatment in employment and training, and sterilizations, though they have not been confirmed.362 The access to loans, subsidies, old-age insurance, and medical and government also condemns the use of population and family educational benefits for themselves and their child.375 planning centers as detention centers meant to coerce women Family planning services provided by NGOs and the private sector into undergoing sterilizations or abortions. Nevertheless, the Since government facilities mainly target married couples, CHINA PAGE 43

young people, especially young female migrant workers, must cations are the third leading cause of death among city hos- rely on the private and NGO sectors for family planning and pital patients, and diseases originating in the perinatal period contraceptive services.376 are among the top ten causes of death of women in urban and China’s NGOs have been instrumental in popularizing rural areas.390 family planning programs and measures.377 The China Fam- Laws and policies ily Planning Association (CFPA), established in 1980, is the China initiated a Safe Motherhood Program during largest family planning/reproductive health social organiza- 2000–2001 that successfully lowered the maternal mortal- tion in the country, with 83 million volunteers and more ity rate by almost 30% in 378 impoverished counties in the than 1 million branches throughout the country.378 Its mem- Western region, and it has since been expanded nationwide.391 bers and activities are vital channels for disseminating family The program includes a special poverty relief fund for 5% of planning, reproductive health (including contraception), and the poorest pregnant women, which aims to provide quality HIV/AIDS information and services to the public.379 maternal and infant health care (including hospital delivery), Approximately 150 million people participate in the and the “Green Lifeline” project which establishes emergen- CFPA’s educational activities each year, and several programs cy and referral systems at county, township and village level target reproductive health-care services to women, unmar- health institutions for treatment of sick and high-risk preg- ried people, poverty-stricken regions, adolescents, migrant nant women with the goal of providing 24-hour access to workers, and ethnic minorities.380 The CFPA has 20 provin- emergency obstetric care.392 cial service centers that offer gynecological checkups; preg- China incorporated maternal and infant health care into nancy tests; diagnoses of infertility, STIs, and HIV/AIDS; its Ninth (1996–2000) and Tenth (2001–2005) Five-Year training in the use of emergency contraception; and sales of Plans for National Social and Economic Development and various contraceptives and maternal, health care, and repro- National Plans for Women’s and Children’s Development ductive health products.381 The association aims to enable (2001–2010).393 Implementation rules, regulations, and stan- people of all ages, genders, nationalities, and socioeconomic dards in obstetrics were developed to improve the three-tiered statuses to make informed decisions about their reproductive (county, township, and village) maternal and child health-care lives.382 It also monitors family planning services to ensure network, which has played an enormously important role in that people of childbearing age enjoy their lawful rights to greatly reducing once-common or chronic diseases affecting reproductive health care.383 In addition, the CFPA raises rural women.394 In 1995, China had 349 maternal and child public awareness by publicizing the medical, social, and psy- health-care medical facilities, 49 gynecological and obstetric chological factors and risks of unsafe abortions in an effort to hospitals, gynecological departments in 14,000 hospitals, 2,832 eliminate the problem.384 maternal and child-care clinics, and 35 children’s hospitals.395 The Chinese Working Women’s Network runs a Center The Department of Maternal and Infant Health Care and for Women Workers and mobile service centers that pro- Community Health (DMCH), established in 2001 under the vide health checkups and reproductive health education for auspices of the Ministry of Health, has several primary objec- migrant workers in the South China industrial areas.385 tives, including the following:

Contraceptive tablets and condoms are available for pur- ■ establish policies, laws, statutes, plans, and regulations chase without a prescription at drug stores and supermarkets governing administration of the Law of the People’s throughout China.386 Hotels, bars, university campuses, con- Republic of China on Maternal and Infant Health struction sites, entertainment venues, and other public places Care (MIHC) and oversee the implementation of rel- around the country are required to install condom vending evant technologies;

machines.387 Many NGOs, among them the CFPA Asso- ■ design technology appraisals and training programs, ciation, the Red Cross Society of China, and Population such as continuing medical education, and develop Services International, disseminate free or low-cost contra- protocols for assessing the professional qualiﬁcations ceptives such as condoms to targeted populations (e.g. ado- of health personnel;

lescents and migrant workers) in many poverty-stricken areas ■ develop plans, policies, and standards to raise “the and in areas with high risk for HIV/AIDS.388 quality of the birth population” and supervise their Maternal health implementation;

China’s maternal mortality rate has been decreasing ■ develop plans, measures, and technological standards steadily, from 63.6 deaths per 100,000 live births in 1997 to 53 for women’s health care and guide their implementa- in 2000, 50.20 in 2001, and 43.2 in 2002.389 Obstetric compli- tion; PAGE 44 WOMEN OF THE WORLD:

■ monitor health MICH organizations and health edu- Infant Health-Care Specialty Technical Service Permits and cation facilities; Personnel Qualifications, Measures for the Management ■ establish polices regarding children’s health care, sur- of Maternal and Infant Health-Care Medical Technology vival, protection, and development; and Appraisals, and Standards for Premarital Health-Care ■ enable international cooperation and exchanges with Work (Revised).409 respect to primary health care, maternal and infant At the end of 2002, the Chinese government estimated 396 health care, and health education. that 90.14% of expectant mothers received prenatal check- These objectives are carried out by six divisions within the ups and 97.2% of midwives in rural areas practiced modern DMCH, including the administrative office, the office of wom- midwifery.410 Health initiatives that have sought to provide 397 en’s health, and the office of children’s health. The DMCH primary health care for all rural residents, particularly women is also responsible for composing a yearly health action plan, and children, encompass strategies to increase hospital births, collecting observational data, and documenting the situation of reduce maternal deaths by 25%, reduce infant deaths by 20%, 398 women’s and children’s health for its annual report. enhance infant nutrition, and offer quality health-care services Pregnant women who suffer from serious illnesses or for women and girls.411 exposure to teratogenic substances are entitled to medical In the National Plan for the Development of Chinese guidance, particularly if their life or health or the fetus’s devel- Women (2001–2010), the government set forth the goals of 399 opment is endangered. Couples discovered to be or sus- hospital deliveries for 65% of rural pregnancies and 90% of pected of suffering from serious genetic diseases are expected high risk pregnancies, and licensed midwife or birth attendant to take appropriate measures (contraception, including pos- facilitated deliveries for 95% of pregnancies in impoverished 400 sibly sterilization) in accordance with their doctor’s advice. regions.412 In addition, free midwifery services have been Pregnant women are referred for a prenatal diagnostic exam if offered to peasant and herder women since November 2004 401 an abnormality is found in their fetus, and physicians may through a pilot program introduced in the eight counties of recommend an abortion if the fetus suffers from a genetic Qinghai Province.413 disease or defect of a serious nature, or if the women’s health The Law on Maternal and Infant Health Care and the 402 or life is threatened. Rules for its Implementation entitle women of childbearing The government considers fetal diseases to be serious if age and pregnant women to the following services: they fulfill the following criteria: they have a high likeli- ■ premarital health-care instruction on topics such as hood of occurring; they cause severe harm and place a high sex, procreation, contraception, family planning, and disease burden on society, families and individuals; there is genetic and reproductive diseases; no effective clinical treatment; and they can be reliably diag- ■ premarital health consultations to provide guidance 403 nosed. Couples who have given birth to an infant with a and advice about medical conditions related to mar- serious defect must submit to medical examinations prior to riage and childbearing; and a second pregnancy.404 ■ premarital medical exams to identify the presence of Government policy encourages hospital deliveries as a diseases that “may have an adverse effect on marriage strategy to combat infant and maternal illnesses and mortal- and childbearing,” including genetic and infectious 405 ity. Where hospital delivery is not possible, the Law on diseases, and mental disorders.414 Maternal and Infant Health Care mandates that pregnant Additionally, women of childbearing age and pregnant women shall deliver at home under the care of government- women have the right to receive the following types of spe- 406 licensed midwives or birth attendants. Women with high- cialized health-care services from medical institutions: risk pregnancies must deliver in hospitals.407 ■ contraceptive, family planning, and reproductive Delivery of services health consultations and services; Public facilities ■ instruction on maternal and infant health care; The DMCH of the MOH is responsible for enforcement, ■ periodic prenatal physical checkups and management, and implementation of the Law of Maternal follow-ups; and and Infant Health Care.408 Since the law was adopted, a ■ newborn health care.415 series of rules, regulations, and policies was issued to enable its The MOH has established 3,200 maternal and child effective implementation. These include the Basic Standards health-care hospitals, staffed by 500,000 workers, through- for Specialty Maternal and Infant Health-Care Technical out the country.416 Family planning stations and clinics are Services, Measures for the Management of Maternal and available in 93.5% of towns and townships and 80.1% of vil- CHINA PAGE 45

lages.417 To provide reproductive services in poor and remote maternal and infant mortality rates.428 areas, the government has dispatched mobile service vans Nutrition equipped with examination and diagnostic technologies in The Law on Maternal and Infant Health Care, effective 2,404 counties.418 In 2003, the hospital delivery rate grew to since 1994, requires medical institutions and personnel to 79.4%, up from 43.7% in 1985.419 provide consultation and instruction on prenatal nutrition as Private facilities including NGOs part of prenatal health-care services.429 The law also calls for A number of international and domestic NGOs provide educating mothers about nutrition for newborn babies and maternal health-care services in China. Distribution of promoting breastfeeding.430 maternal health-care information to the general public and There are national campaigns to improve maternal nutri- specifically to women is a major component of the China tion, including attempts to eliminate iodine-deficiency dis- Family Planning Association’s activities in the area of repro- order by distributing iodine salt and capsules for pregnant ductive health.420 women, distribution of tetanus toxoid vaccines during preg- Several NGOs, including the Zigen Fund, the Tibet Pov- nancy to reduce the incidence of neonatal tetanus, and pro- erty Alleviation Fund (TPAF), the Terma Foundation, the grams to reduce iron-deficient anemia.431 Additionally, the Swiss Red Cross, and ProLiteracy, train doctors, midwives, water supply has been improved, benefiting 92.38% of the and birth attendants to improve maternal and obstetric ser- rural population of China in 2000.432 And to improve infant vices.421 PLAN, Health Unlimited, and women’s federations nutrition, the Ministry of Health is also trying to reverse in several provinces and counties provide training in maternal the decline in the rate of breastfeeding (from 76% in 1998 and child health care for medical staff and communities.422 to 64% in 2005), by mandating breastfeeding education for The TPAF, in partnership with the government, developed all postnatal women in medical/health facilities, restricting a Tibet-wide Safe Motherhood Strategy aimed at reducing promotion of breast milk substitutes, and revoking operating maternal mortality by 10% by 2010. The TPAF is imple- licenses for facilities that violate these provisions. 433 menting the strategy by equipping and upgrading maternal Safe abortion health-care facilities and building their capacity for obstetric China’s induced abortion rate peaked in the 1980s and has surgeries and safe deliveries.423 It has also assisted local health declined by 53% since, from 43 abortions per 1,000 women departments in launching the Community Medical System of childbearing age in 1990 to 18 per 1,000 in 2001.434 None- (CMS) to rural families to reduce the cost of health care, theless, approximately 4 million induced abortions were per- including the cost of deliveries at clinics and hospitals.424 formed in 1999, according to government statistics.435 Studies The Terma Foundation has a “Healthy Mother, Healthy show that abortion has assumed a greater role in control- Babies” campaign that seeks to improve maternal outcomes ling fertility in China because of contraceptive failure and in the Tibet region by providing at-risk women with pre- reduced rates of contraceptive use.436 Government statistics natal vitamins and nutritional and lactation education, and indicate that 72% of abortions in China overall, and 90% of equipping health workers with diagnostic tools to identify abortions in urban areas, result from contraceptive failure.437 high-risk pregnancies and life-threatening postpartum and The family planning program was reoriented after Chi- neonatal diseases.425 na signed the ICPD in 1995 from a focus on controlling PATH has worked in China since the 1980s, advancing population to providing quality health-care services. The reproductive health, family planning, and maternal and change has led to a notable fall in abortions.438 Nonethe- infant health-care services by offering technical assistance, less, induced abortion is recognized as a major contributor including the development of new contraceptives. Cur- to China’s fertility decline. Furthermore, the incidence of rently, it is working with the CFPA to provide life-planning abortion among urban, college-educated women—whom skills (addressing, for example, romantic relationships, sex, the government effectively targeted through its family plan- contraception, condoms, and STIs/HIV) for adolescent girls ning programs—is at least six times higher than that of rural, and migrant workers through peer educators and employer- illiterate women.439 sponsored seminars.426 Abortion laws and policies Health Unlimited has been working in the area of mater- Currently, the Criminal Law of China, enacted by the nal and child health care in China since 1993.427 In addition National People’s Congress in 1979 and revised in 2005, con- to training health-care workers, it provides vital equipment tains no provisions under which abortion, performed with the (such as incubators and fetal monitors) and support services consent of the pregnant woman by a licensed doctor, constitutes and conducts community education campaigns to improve an offense.440 However, sex-selective abortions for nonmedical PAGE 46 WOMEN OF THE WORLD:

purposes are strictly prohibited by the Population and Family A woman receives 14 days of paid sick leave for a first- Planning Law 2002 and are expected to be criminalized in an trimester abortion and 30 days if the pregnancy is terminated amendment to the Criminal Law.441 In spite of this prohibition, after the first trimester. In some parts of the country, paid sick the practice continues. One official study in Hainan province leave is extended if a woman who has an abortion has an IUD found that 68% of abortions were of female fetuses.442 inserted, or is sterilized after the abortion is performed.457 Early abortions may be performed surgically by licensed Government delivery of abortion services medical personnel in a clinic, using the vacuum aspiration Abortion services are provided by the Government of technique or medically.443 The government approved the China as a public service.458 Family planning technical service use of medical abortion in 1988.444 Although mifepristone is facilities from the village to the provincial level offer abortion legally available at hospitals, concern about side effects led the services and follow-up care.459 government to ban sales of the drug on the open market.445 There has been much concern about government offi- Abortions at or during the second trimester are medically or cials at various levels coercing women to undergo abortion. surgically performed in a hospital by a licensed physician.446 Although the use of physical coercion to compel women There are no national laws or regulations limiting the ges- to submit to abortions is prohibited,460 it has been reported tational age at which a pregnancy may be terminated, and that officials in at least one province have forced women to the Ministry of Health’s Rules for Birth Control Surger- abort unplanned pregnancies immediately.461 In response, the ies describe methods for terminating pregnancies up to 27 central government and the NPFPC issued an official con- weeks.447 However, local legislation and policies place restric- demnation of these actions, imposed administrative penalties, tions upon the conditions under which a woman may termi- and fired the responsible officials.462 Because the Population nate a pregnancy. and Family Planning Law delegates the responsibility of its The 1994 Law on Maternal and Infant Health Care speci- implementation to provincial governments and states only fies the following three conditions under which an abortion that compliance with birth limits should be “chiefly” achieved may be medically necessary: through the use of contraception, some existing provincial

■ where the fetus has a “serious deformity;” regulations mandating sterilization or abortion do not direct-

■ where the fetus has a serious hereditary disease; and ly contradict the law and have remained in effect.463

■ where the pregnancy endangers the life of the preg- HIV/AIDS and other sexually transmissible infections nant woman. 448 (STIs) Permission for a non-medically necessary abortion must At the end of 2003, 80,000 of the estimated 840,000 people be obtained from the county or local people’s government’s who tested positive for HIV in the country were clinically family planning department if a birth permit was issued for the confirmed AIDS cases.464 The number of AIDS cases and pregnancy by the provincial population and family planning AIDS-related deaths has increased dramatically in the last department.449 Unapproved abortions result in official admon- several years. The reported number of AIDS cases increased ishments, fines of up to CNY 3,000 (USD 362.50), revocation by 44% between 2001 and 2002, and the increase was 206% or future denial of birth permits, and possible required steril- between 2000 and 2001.465 Among adults, the national ization for the woman.450 Second trimester abortion (starting HIV/AIDS prevalence rate is less than 0.1%; however, cer- at 14 weeks) of a government-sanctioned pregnancy may be tain regions have significantly higher HIV/AIDS infection performed only upon approval of the local family planning rates (about 80%), particularly among high-risk groups such agency, and in numerous provinces, local legislation bans these as intravenous drug users.466 abortions unless they are deemed medically necessary.451 While intravenous drug use is the predominant mode of To proceed with a pregnancy termination, a woman’s con- HIV transmission in China, sexual transmission is steadily sent is required.452 If the woman is unable to consent, such increasing, primarily among sex workers.467 Between 1997 consent must be obtained from her guardians.453 Unauthor- and 2002, the rate of sexually transmitted HIV infections ized health-care workers who conduct a termination of preg- nearly doubled, from 5.5% to 10.9%.468 Figures from 1997, nancy that results in a patient’s death or disability may face 2001 and 2002 indicate that HIV prevalence is also increasing criminal charges.454 among unmarried youth (1.7%), pregnant women (1.3%), and The 2002 Population and Family Planning Law states newborns through mother to child transmission (0.4%).469 that “husbands and wives bear equal responsibility for family Prior to the enactment of Regulations for the Management of planning.”455 This provision may be interpreted to require a Blood Products in 1996, a significant number of HIV infec- husband’s consent in obtaining an abortion.456 tions resulted from blood transfusions, and this remains a CHINA PAGE 47

problem in rural areas.470 In some provinces, an average of ports, and train stations. Health and quarantine organs must 60% of former plasma donors are reportedly infected with bar carriers or suspected carriers of infectious diseases from HIV and the unregulated sale of plasma/blood remains a exiting the country,485 and foreigners with AIDS or venereal or common phenomenon.471 infectious diseases are prohibited from entering the country.486 Awareness of the epidemic is low among the general pub- Attempts to evade border health inspection, falsify one’s health lic, especially in vulnerable groups such as sex workers.472 status, or spread communicable diseases may be punished with One survey revealed that only 14% to 30% of sex workers a fine and/or up to three years’ imprisonment.487 knew condoms could prevent HIV infection, and only 2% to The Blood Donation Law, which became effective in 1998, 30% considered themselves at risk of being infected.473 Lack was enacted to control the spread of STIs and HIV/AIDS of knowledge is also behind discriminatory attitudes against by regulating blood banks and blood donors.488 The law people with HIV/AIDS.474 requires blood banks to ensure the quality of blood by guard- Prevalence of HIV/AIDS among Chinese gay men ranges ing against risk of contamination by persons with STIs or from 3% to 5%, and lack of essential knowledge and unsafe sex HIV/AIDS.489 Donors must undergo a free medical exam with multiple partners are the primary causes of infection.475 and must be in satisfactory physical health—specifically, free The central government has no program or policy address- from HIV/AIDS—to be eligible to give blood.490 The Reg- ing this population, although local governments, working in ulation on Management of Blood Products also establishes concert with foreign partners, have begun to offer limited provisions to strengthen control and guarantee quality and HIV/AIDS services for gay men.476 safety of blood products, and prevent the spread of infectious There are currently an estimated eighty thousand children diseases through their use.491 Individuals engaged in illegal orphaned by AIDS in China, and the number is expected to selling of blood face fines and imprisonment for up to five grow to two hundred sixty thousand by 2010.477 years.492 Hospitals that fail to screen their blood and thereby Laws and policies transmit HIV to a patient may face civil liability.493 The Law on the Prevention and Treatment of Infectious The Maternal and Infant Health Care Law also addresses Diseases was enacted in 1989 and amended in 2004 in order to the issue of STIs and HIV/AIDS in premarital couples. If one prevent, control, and eliminate the occurrence and epidemic party is discovered to be in an infectious stage of an infec- of infectious diseases such as HIV/AIDS and other STIs.478 tious disease, such as gonorrhea, syphilis, or HIV/AIDS,494 The law applies to all individuals who are physically pres- the examining practitioner will offer medical advice and issue ent in China. Individuals suspected of having an infectious a premarital medical “suggestion” advising the couple to post- disease are mandated by the law to submit inquiries, exami- pone marriage.495 The 2003 revision of the Regulation on nations, investigations, and undergo treatment provided by Marriage Registration alleviated the requirement that people disease control and medical institutions.479 These facilities are registering for marriage must undergo premarital medical also charged with providing necessary treatment and control exams, and officials from the Ministry of Health have stated measures appropriate to the patient’s condition.480 that HIV carriers have the right to marry;496 however, some Anyone with knowledge of an individual who has or is provinces have refused to issue marriage certificates to people suspected of having HIV/AIDS or other designated STIs living with HIV/AIDS (PLWHA ).497 (e.g. gonorrhea, syphilis, and hepatitis) is compelled by law China’s efforts to prevent the spread of HIV/AIDS were to report him or her to medical or disease control agencies, bolstered in 1994 through the signing of the Paris Declaration, which must then immediately notify relevant government a global statement calling for the prevention and control of the departments and the Ministry of Health.481 The law prohibits disease. Subsequently, the Ministry of Finance established a individuals who have or are suspected of having HIV/AIDS special fund for HIV/AIDS prevention and control in 1996.498 or STIs from being employed in jobs in which the spread of The China Medium- and Long-Term Plan for HIV/AIDS such diseases might be difficult to control.482 Violations of Prevention and Control (1998–2010) (CMLTP), issued and these provisions are punishable by up to three years’ imprison- distributed by the State Council in 1998, sets out the gov- ment, and in cases where the consequences are especially seri- ernment’s objectives for HIV/AIDS prevention and control, ous, up to seven years’ imprisonment.483 If the illegal action which include the following:

leads to personal or property damage, the violator may be ■ ensure that provincial governments incorporate subjected to civil action.484 HIV/AIDS prevention work into the local economic Several border control laws address issues related to the exit and social infrastructures;

and entry of persons with STIs or HIV/AIDS at airports, sea- ■ create a surveillance system that monitors the preva- PAGE 48 WOMEN OF THE WORLD:

lence of the disease; and working protocols, exposure-reduction methods, and emer-

■ establish and modify laws and regulations related to gency procedures to reduce the risk of HIV infection among STIs and HIV/AIDS.499 health-care workers. 506 The MOH has also issued guidelines In 2001, China’s minister of health signed the Declara- for pregnant women for prevention of HIV/AIDS transmis- tion of Commitment on HIV/AIDS at the United Nations sion;507 issued guidelines and technical manuals for free ARVs; General Assembly Special Session on HIV/AIDS, reiterating organized the National HIV/AIDS Clinical Task Force to China’s commitment to HIV/AIDS prevention and con- provide HIV/AIDS services training for primary, county, and trol.500 The same year, the State Council issued the China township health workers; and established ten AIDS clinical HIV/AIDS Containment, Prevention, and Control Action training centers.508 Plan (2001–2005) to ensure that the objectives and tasks set The government has taken several steps toward fulﬁllment out in the CMLTP would be achieved.501 The principles of of the goals of CMLTP, including exempting imported ARVs the action plan are as follows: from duty and VAT (value added tax) for ﬁve years to increase

■ focus on educating the general public and vulner- their availability and affordability;509 expediting approval of able populations about high-risk behavior and harm ARVs;510 and encouraging domestic drug producers to pro- reduction; duce generic ARVs.511 Condom quality has improved, as has

■ strengthen health education and behavioral interven- condom dissemination, and free condoms are now supplied tions and emphasize the development of effective, to PLWHA.512 sustainable programs; and The government has introduced a series of measures

■ increase guidance, monitoring, and supervision of to improve the quality of life of PLWHA and their families. programs.502 Medical facilities appointed to care for PLWHA must provide The action plan aimed to achieve the following targets by treatment immediately and are not allowed to refuse care.513 2005: To increase accessibility of HIV/AIDS treatment, home care

■ condom usage rate of over 50% among high-risk programs are available for patients in remission or in situations populations; where isolated treatment is inappropriate.514 Anonymous HIV

■ HIV/AIDS training for all personnel engaged in HIV tests are conducted free of charge in areas with large num- prevention and control, clinical treatment and care, bers of HIV/AIDS cases, in poverty-stricken regions, and for laboratory testing, blood collection, and provision; and vulnerable populations.515 Pregnant women with HIV/AIDS

■ integration of local and national HIV/AIDS informa- are given free counseling, medical screenings, and ARVs to tion networks.503 prevent transmission of the virus to their fetus.516 In part- During a high-level HIV/AIDS meeting of the UN Gen- nership with NGOs and international organizations, the eral Assembly in September 2003, the Chinese government government provides PLWHA with agricultural tax-exemp- made several commitments to ﬁghting HIV/AIDS, including tions and microcredits, and allows their children to attend the following: school free of charge.517

■ holding health-care workers accountable if their pro- In 2004, the State Council premier announced the Four fessional negligence results in the further spread of the Frees and One Care policy, which provides the following:

disease; ■ free ARV drugs for all people diagnosed with HIV/

■ providing free antiretroviral (ARV) medicines to low- AIDS in rural areas;

income PLWHA in urban areas and all PLWHA in ■ free voluntary counseling and testing (VCT) in high rural areas; prevalence areas;

■ increasing international cooperation on HIV/AIDS by ■ free education to children orphaned by AIDS;

welcoming continued ﬁnancial and technical support ■ free VCT and prevention of mother-to-infant trans- from other countries and international organizations.504 mission services for pregnant women; and

The central and local governments have pledged more than ■ care to PLWHA facing ﬁnancial difﬁculties.518 CNY 10 billion (USD 1.2 billion) to improve the strength The government’s four-tier (county, prefecture, province, of the health-care system and professional capacity for HIV/ and national) disease prevention and control network imple- AIDS prevention and control.505 ments this policy through the China National Free ARV Recent regulations related to HIV/AIDS include a trial Treatment Program.519 Among the strategies of the program implementation of the Principles for Prevention and Protec- are China CARES (Comprehensive AIDS Response) pilot tion of Medical Personnel from HIV Exposure to establish initiatives, which are community-based HIV/AIDS treat- CHINA PAGE 49

ment and care projects in 127 counties throughout 28 prov- afforded to other citizens, including access to day care and inces; and the provision of support and resources from the education.532 Citizens are urged to follow their social duty in Chinese Center for Disease Control to provinces according combating discrimination, and local governments are obli- to their needs.520 gated to ensure that PLWHA are provided with a friendly, Regulation of information on HIV/AIDS and other STIs considerate, and healthy environment where they are encour- Information on HIV/AIDS and STIs is disseminated to aged to think positively, correct high-risk behavior, and the Chinese population through a number of campaigns con- receive care that prolongs the quality of their lives and their ducted by ministries and government divisions. The State lifespan.533 These provisions were also included in the State Council Policy on HIV Prevention and Control calls upon Council Notice on Strengthening HIV/AIDS Prevention all levels of government to disseminate information on HIV and Control of 2004.534 prevention to all child-care centers, schools, enterprises, and However, despite policies denouncing HIV/AIDS discrim- media outlets.521 On annual World AIDS Day, which falls on ination, violations are punishable only by minor administrative December 1, the Chinese government sponsors national HIV/ penalties, and some legislative measures seem more support- AIDS awareness campaigns involving conferences, entertain- ive of segregation than acceptance. For instance, PLWHA are ment, interviews with experts, on-site consultations, hotlines, required to submit to medical consultations before marriage distribution of educational materials, and activity reports.522 and may be issued premarital medical exam certificates with Other national programs initiated by NGOs and government a recommendation to “postpone marriage” for an indefinite divisions include HIV/AIDS Prevention and Health for the period.535 Officials from the Ministry of Health have stated Whole Family, sponsored by the ACWF and the Ministry of that PLWHA have the right to get married, but in many prov- Health,523 and Red Ribbon Action, sponsored by the CCYL, inces, such as Hunan and Jiangsu, HIV-positive individuals the Ministry of Education (MOE), and the MOH.524 cannot obtain a marriage certificate.536 In addition, it has been Government departments offer a variety of HIV/AIDS reported that AIDS orphans, who are often HIV-positive, face education and awareness campaigns organized by the State maltreatment by their peers and teachers, and are refused entry Council Coordination Mechanism on AIDS/STIs to maxi- to schools, hotels, and businesses.537 mize the effectiveness of HIV/AIDS prevention and control Adolescent reproductive health efforts.525 Since the State Administration of Industry and China has one of the largest adolescent populations in the Commerce lifted the ban against condom advertisements in world. According to the 2000 census, more than 320 million 2004, the government has adopted a policy of encouraging people in China are between the ages of 10 and 24, account- condom use for the prevention of HIV/AIDS using pub- ing for 26% of the total population.538 About 50% of Chinese lic service television commercials, billboards, and publica- adolescents are female.539 tions.526 The MOE set forth guidelines defining the standards Laws and policies for HIV/AIDS training materials in schools and curricula.527 Though China has signed and ratified international The ministry is also responsible for implementing programs instruments with provisions for adolescent reproductive for HIV prevention and voluntary, nonremunerated blood health care, such as the ICPD Programme of Action, the donation in all high schools, vocational schools, and insti- Beijing Platform for Action, and the ICPD+5, family plan- tutes of higher learning.528 The Ministry of Railways and ning and reproductive health services for adolescents are various transportation departments target commuters and extremely limited in China.540 migrant workers by printing HIV/AIDS information on the However, the Chinese government has taken several backs of tickets and conducting campaigns at major stations steps to improve availability and accessibility of reproductive and ports.529 The All-China Federation of Trade Unions health care for adolescents. In 2002, a government hospital and the NPFPC both conduct awareness raising campaigns, in Beijing opened the country’s first clinic for adolescent educational seminars, and training programs throughout the psychological and sexual health-care services.541 The clin- nation.530 ic provides adolescents with free or low-cost gynecology, The government’s antidiscrimination protections for maternity, urology, pediatrics, and psychological counseling PLWHA are somewhat contradictory. The Notice on the services.542 Similar facilities have since opened in several Administration of HIV Positive People and Patients states that cities.543 These government-funded adolescent health-care HIV-positive individuals and their relatives cannot be dis- facilities offer free abortion services for pregnant girls under criminated against.531 The notice also guarantees PLWHA 18 years of age, and some permit anonymous abortions and their children the same legal rights and social benefits without parental notification.544 PAGE 50 WOMEN OF THE WORLD:

Delivery of adolescent reproductive health services by NGOs and inhabited by more than 1.3 billion people, comprising one- international organizations fifth of the world’s population. Since the 1950s, family plan- NGOs and international organizations are addressing ning has been a national policy with the goal of ensuring that the inadequacy of adolescent reproductive health services families have only one child, thereby reducing the rapidly through a variety of programs. A CFPA initiative provides climbing population growth rate.556 information about reproductive and maternal and infant In the 1970s, the government launched the “wan, xi, shao” health care, puberty, and family planning to unmarried (“later, longer, fewer”) campaign emphasizing later marriage, youths to encourage responsible behavior, such as contra- longer intervals between births, and fewer births.557 At the ceptive use, and decrease incidences of premarital pregnan- onset of the campaign, couples were discouraged from hav- cies and induced abortions.545 ing more than two children, but by the late 1970s no more The United Nations Development Programme (UNDP) than one child was recommended.558 The campaign was and UNFPA created pilot projects on adolescent reproduc- the first to introduce national, provincial, and local birth tive health (ARH) in Shanghai and Beijing, where students rate targets.559 function as youth volunteers and peer educators to help Fears that excessive population growth would derail eco- increase awareness of sexual and reproductive health issues nomic development drove the Chinese government to go and generate support from local leaders, teachers, parents, further and launch the one-child policy in 1979.560 The pol- and family planning workers.546 The program also involved icy restricted couples from having more than one child and the targeted marketing of contraceptives, thereby increasing required official “birth permits” before conceiving a child.561 It both the accessibility of condoms and awareness of repro- is widely reported that at the policy’s inception, coercive meth- ductive health issues for underserved adolescents.547 ods were frequently exercised to ensure its enforcement.562 These initiatives have produced promising results.548 The After abandoning the compulsory birth control strategies UNDP and UNFPA plan to concentrate their advocacy employed in the 1970s and 1980s, China adopted less stringent efforts on policy development and the recognition and real- measures in implementing its population policies. Although ization of reproductive health rights for young people.549 In the shift places greater focus on individual rights, “these rights the future, the pilot ARH projects will be expanded to other are mostly to receive services, not to reject them,” and citizens areas and various approaches will be tested to provide youth- must still adhere to birth limitations.563 centered information, counseling, and services.550 The The government’s population policies have been criti- UNFPA will strengthen the capacity of program managers to cized for reinforcing patriarchal attitudes by supporting son integrate ARH into the existing health-care system and offer preference, a critical factor in the “missing girls” phenom- assistance to improve the overall health-care system.551 enon whereby female babies are abandoned, neglected, or HIV/AIDS is a growing problem among China’s youth. killed, or their births hidden from family planning authori- The Red Cross Society of China (RCSC) has introduced ties so couples can try to have a son.564 The policies have youth peer education for HIV/AIDS prevention and care also been faulted for contributing towards skewed sex ratios, in more than 15 provinces.552 Implemented and funded by where more boys than girls are born. Currently, newborns local people’s governments and international NGOs, the in China are disproportionately male with national statistics programs’ objectives are to give accurate information about indicating that the male to female sex ratio for newborns is HIV/AIDS and its prevention to adolescents through peer 119 boys to 100 girls.565 In some regions, the ratio is 130 boys education to reduce high-risk behavior, improve decision to 100 girls.566 making, and dispel the stigma of the disease.553 The pro- China’s population control program has led to a dramatic gram is expected to be expanded to migrant workers, sex decline in the country’s national birth rate, which has dropped workers, and PLWHA.554 To combat discrimination against from a high of 23.33 births per 1,000 persons in 1988 to 12.86 AIDS orphans, local people’s governments, China’s Center births per 1,000 persons in 2002, with urban areas report- for Disease Control, and domestic and international NGOs ing record low rates.567 In 2002, the official national fertil- have launched public awareness campaigns, provided sub- ity rate in China was 1.19 average number of live births per sidies to foster families, and organized summer camps for women aged 15-49.568 Although China is now on the path to AIDS orphans.555 population stabilization and a low fertility rate,569 the Chinese government maintains that further reduction in population is C. POPULATION necessary to ensure economic and social well-being.570 In a China is one of the most populous countries in the world, decision promulgated by the CPC Central Committee and CHINA PAGE 51

the State Council in 2000, excessive population growth was ■ enable individuals of childbearing age access to basic cited as a “crucial factor” in hindering the country’s economic reproductive health-care services; and and social development.571 ■ widely promote the informed use of various contra- 579 The government has indicated that in the long run, eco- ceptive measures. nomic development will limit childbearing; in the meantime, China’s family planning policies were further reiterated in the the government “relies on publicity and education, advances Tenth Five-Year Plan for National Economic and Social Devel- in science and technology, multipurpose services and … the opment (2000–2005), and called for the following results: reward and social security systems” to secure compliance with ■ sustain the low birth rate; its population control laws.572 ■ improve prenatal and postnatal care; Laws and policies ■ improve management of family planning in rural China is committed to achieving a peak population of 1.6 areas and among migrant populations; billion by the mid-21st century and a steady decline in pop- ■ establish rewards for family planning; and ulation thereafter.573 In 2001, China codified its one-child ■ accelerate the work of legislation for population and 580 policy and current family planning policy and practices in the family planning. Population and Family Planning Law.574 The law was enacted In 2005, the government launched a nationwide program to bring about “a coordinated development between popu- called Social Support for Some Rural Families Practicing Fam- lation on the one side and the economy, society, resources, ily Planning, which provides cash rewards to elderly (60 years and the environment on the other,” and to promote family old or above) rural couples with one child or two daughters in 581 planning for the enhancement of family happiness and the compliance with population and family planning policies. prosperity of the country.575 Eligible recipients are entitled to a minimum of CNY 600 582 According to the Population and Family Planning Law, the (USD 72) a year, or CNY 1,200 (USD 144) per couple. government “advocates” one child per married couple, and Some rural families with daughters are given privileges in requests to have a second child are subject to local laws and housing, employment, education, and welfare support under regulations.576 Regulations permitting a second child vary the NPFPC’s Care for Girls program, launched in 2000, which across provinces, autonomous regions, and municipalities. In seeks to reverse the newborn gender disparity and “improve 583 general, couples fulfilling the following criteria may petition the environment for girls’ survival and development.” the local family planning department to have a second child: Under the program, daughter(s)-only families receive loans and funding of up to CNY 5,000 (USD 604) for income- ■ their first child is disabled with no hope of entering the work force; generating production, free schooling, and lectures on gender equality, and girls receive free health exams to ensure they are ■ they are remarried and one of the spouses has no 584 children; properly cared for by their families. Both incentives and penalties are used to encourage com- ■ they were diagnosed as infertile and became pregnant after adopting a child; pliance with the population policy. Couples who follow the population policy receive social and economic incentives such ■ both husband and wife are single children; as insurance, welfare benefits, poverty-alleviation loans, and ■ they are ethnic minorities living in rural or autono- 585 mous national regions; or work relief. Citizens who do not follow the directives of the population policy are required to pay a social compensa- ■ they live in a rural area and their first child is a girl.577 586 One of the earliest exceptions to the one-child policy, the tion fee. Unmarried couples, women under the legal age provision permitting rural couples with a daughter to have a for marriage, and both parties of an extramarital affair who second child, was enacted in 1984 as a concession to the strong have a child may also be subjected to social compensation 587 resistance to birth limits and the desire to have multiple chil- fees. These fees are significant and may be several times the 588 dren among rural couples who lack pension plans and must amount of an individual’s annual income. Families who rely on their offspring to support them in their old age.578 do not pay their social compensation fees within the specified 589 The government’s population and family planning objec- time period are subject to additional fees and charges, and tives for 2000–2010 are outlined in a decision released jointly anyone who fails to make payments may be given administra- by the CPC Central Committee and the State Council. They tive sanctions or face disciplinary actions from their work unit 590 are as follows: or organization. Civil servants and state functionaries who violate family planning laws are subjected to harsher punish- ■ limit the total population to 1.4 billion by 2010; ments.591 (See “Family planning” for more information). ■ balance the sex ratio of newborn babies; PAGE 52 WOMEN OF THE WORLD:

Ethnic minority groups the NPFPC, working closely with the MOH, the CFPA, and The people’s congresses in autonomous national regions UNFPA, established pilot programs in 32 counties that aban- may formulate their own family planning policies in light of the doned birth quotas and upgraded services in family planning central government’s stated interest in improving the quality of clinics. In these counties, women and men were given more life and economic and social development of ethnic minority freedom of choice when selecting contraceptive methods, populations and the need for family planning regulations.592 including wider access to condoms and birth control pills.603 These policies allow most ethnic minority families to have two or three children; allow more than three in small ethnic minority populations or for those living in harsh geographical III. Legal Status of conditions; and place no official constraints on the number of Women and Girls children of Tibetan farmers and herdsmen.593 Implementing agencies The health and reproductive rights of women and girls cannot All sections of the government are directed to promote and be fully understood without taking into account their legal implement the population policy, including the family planning and social status. Laws relating to their legal status not only administrative departments, social organizations such as trade reflect societal attitudes that shape the landscape of reproduc- unions and women’s federations, the armed forces, and the mass tive rights, they directly impact their ability to exercise these media.594 Family planning departments that fail to fulfill birth rights. A woman or adolescent girl’s marital status, her abil- targets are admonished by their supervising agency, and the ity to own property and earn an independent income, her person in charge may be given administrative penalties.595 level of education, and her vulnerability to violence affect her The NPFPC formulates, coordinates, and oversees the ability to make decisions about her reproductive and sexual population policy.596 The NPFPC is headed by a minister, health and to access appropriate services. The following sec- several vice ministers, and departmental director-generals.597 tion describes the legal status of women and girls in China. There are eight major departments in the NPFPC: the gen- A. RIGHTS TO EQUALITY AND eral office; the Department of Policies and Regulations; the NONDISCRIMINATION Department of Development and Planning; the Department The constitution of the People’s Republic of China proof Publicity and Education; the Department of Science and nounces all citizens equal before the law and states that Technology; the Department of Finance; the Department of women “enjoy equal rights with men in all spheres of life, in Personnel; and the Department of International Coopera- political, economic, cultural and social, and family life.”604 598 tion. The general office organizes and coordinates surveys, The government is entrusted to “protect the rights and research, and analysis of key population and family planning interests of women, appl[y] the principle of equal pay for issues to support policy-making at the commission’s top lev- equal work to men and women alike[,] and train and select 599 els. The general office also examines and supervises the cadres from among women.”605 Other constitutional pro- enforcement of major population and family planning poli- visions obligate the government to uphold the freedom of cies formulated by the CPC Central Committee and the marriage, protect families, and prevent the maltreatment of State Council. There are family planning commissions at women and children.606 the provincial, prefectural, and county levels and family plan- The Chinese government has encouraged women to par- 600 ning committees below them. The NPFPC has ties with ticipate in politics by passing a number of legislative mea- numerous research and mass educational organizations to sures, which have resulted in the steady increase of female 601 manage and implement the population control policies. government officials since the establishment of the Republic Several Chinese NGOs assist the government on popula- (See “Legal and Political Framework” for more information). tion control issues. Among them are the Family Planning In addition to the constitution, a number of laws address Association, the Population Association, the Association for the rights and interests of women and girls, including the Promotion of Population Culture, the Population Welfare Civil Law, Marriage Law, Law on Maternal and Infant Health Foundation, the Association for Healthier Births and Bet- Care, Law of Succession, Labor Law, Women’s Rights Law, ter Childbearing, the Association for Research on Healthier Trade Union Law, Compulsory Education Law, Education Births, and the Family Planning Institute of China Medical Law, Adoption Law, Criminal Law, Law on the Protection of 602 Association. Minors, and Law on Population and Family Planning. The With the help of these NGOs, China’s government is Women’s Rights Law of 1992, revised in 2005, was the first experimenting with less stringent fertility controls. In 2004, CHINA PAGE 53

basic law to protect women’s rights and interests in a com- cial Affairs of the NPC. Some of the main activities of the prehensive and systematic manner and provides that women OWYW include researching, drafting, and monitoring the enjoy equal rights and status with men in all aspects of politi- implementation of national legislation on women, children, cal, economic, cultural, social, and family life.607 and adolescents; and monitoring local laws concerning wom- There is currently no law explicitly protecting homosexu- en, children, and adolescents.614 als from discrimination, or recognizing and promoting their The ACWF was founded in 1949 “to represent and safe- particular rights. Homosexuality was a criminal offense until guard women’s rights and interests and promote equality 1997, and it was classified by the Chinese Psychiatric Associa- between women and men.”615 The ACWF is entrusted, tion as a mental illness until 2001.608 under statute, with representing and upholding “the rights of Formal institutions and policies women of all nationalities and all walks of life and striv[ing to] The government has established a number of institutional … protect … women’s right and interests.”616 The federation procedures and official policies to advance gender equality. is responsible for creating legislation pertaining to women’s The National Working Committee on Children and issues and was recently entrusted with writing the final draft Women under the State Council (NWCCW) was established of the amendments to the Women’s Rights Law.617 The fed- on February 22, 1990, to implement China’s policy of gender eration is a member of the NWCCW and enjoys consultative equality and ensure adherence to the principle of devotion status with the Economic and Social Council of the United to women and children’s survival, protection, and develop- Nations.618 Members include female workers’ committees ment.609 The NWCCW assisted the State Council in draft- of trade unions in factories and mines, as well as registered ing and promulgating the National Plan for the Development national or local women’s organizations approved by ACWF. of Chinese Women (1995–2000) and the National Plan for At present there are about sixty thousand grassroots women’s the Development of Chinese Children (1995–2000), and federations at or above the township and neighborhood com- is currently overseeing the National Plan for the Develop- mittee levels, and more than nine hundred eighty thousand ment of Chinese Women (2001–2010) and the National Plan women’s groups.619 for Development of Chinese Children (2001–2010).610 The According to the World Bank’s East Asia Environment and NWCCW is composed of officials from 28 ministries and Social Development Unit, the ACWF in some ways func- commissions, and 5 NGOs, including the Chinese Commu- tions as a “quasi-governmental agency” and is constrained nist Youth League (CCYL) and the ACWF.611 to a certain extent because of its close association with the The main role of the NWCCW is to make the rights and Chinese government. Nevertheless, the ACWF acts as a interests of women and children a priority at all levels of gov- bridge between policymakers and civil society and is, thus, ernment.612 Specifically, some of the working committee’s “an important part of the enabling environment for gender primary responsibilities include the following: equality in China.”620

■ strengthening legislation that protects the rights of B. CITIZENSHIP women and children and addressing prominent barri- Under the 1980 Nationality Law of the China, men and ers to the development of this population; women have equal rights regarding the acquisition, loss, and ■ encouraging the full implementation of key interna- restoration of citizenship.621 tional treaties such as CEDAW and CRC that protect the rights and interests of women and children; C. MARRIAGE ■ establishing and strengthening mechanisms to ensure The right to marriage and the freedom of marriage are pro- the implementation of women’s and children’s protected by the constitution, the Civil Law, the Marriage Law, grams at the local level; and Women’s Rights Law.622 The constitution guarantees ■ training relevant government ofﬁcials to implement women equal rights in marriage and in the family and obli- programs for women and children; gates the government to take measures to protect women’s ■ addressing key obstacles to the provision of education right of self-determination in marriage and prohibit external and health care for all women and children; and interference with their freedom of marriage.623 ■ ensuring sanitary conditions in low-income and Men and women have equal rights to marriage, and a minority regions to improve the survival and devel- marriage must be based upon the complete willingness of opment of their women and children.613 both parties.624 The Marriage Law is the fundamental code The Ofﬁce of Workers, Youth, and Women (OWYW) governing marriage625 and establishes the legal marriage age is an integral part of the Committee on Internal and Judi- as 22 for men and 20 for women.626 The Law on the Protec- PAGE 54 WOMEN OF THE WORLD:

tion of Minors stipulates that parents or guardians may not certificate in order to legally establish their marital relation- force or permit their minor children to marry or undertake ship.640 The Regulations on Marriage Registration, revised an engagement.627 The Population and Family Planning Law in late 2003, provide that Chinese citizens may apply for a rewards couples who delay their marriage beyond the mini- marriage certificate if they can show identification cards mum ages with welfare benefits such as longer nuptial leaves and residency papers, and sign an affidavit attesting to their from work.628 unmarried status and lack of blood relation to their intend- The Marriage Law prohibits marriages based upon an ed spouse.641 Prior to these revisions, Chinese citizens were arbitrary decision by a third party, monetary or material gains, required to obtain a letter from their work unit verifying their and other types of interference or compulsion by a third par- unmarried status and were compelled to undergo premarital ty or the prospective spouse.629 A marriage that has been medical examinations to determine their “fitness for mar- coerced or obtained under conditions restricting personal riage.”642 (See “Examining Reproductive Health and Rights” freedom may be dissolved upon request by the coerced party for more information.) The revised regulations allow trans- to the marriage registration office or the people’s court. This gender individuals who have undergone sex change opera- request must be submitted within one year of the marriage tions and officially changed their sex on their identity cards registration date, or within one year of regaining personal to register for marriage as their new gender and prohibit dis- freedom.630 Coercion refers to any actions that threaten the crimination against them.643 life, physical body, health, reputation, or assets of the coerced Both the Women’s Rights Law and the Marriage Law party or his or her close relatives.631 establish women’s property rights within marriage and also Bigamy is prohibited, as is marriage between certain blood establish equal rights for women in the possession, use, pro- relatives or those infected with diseases that may render a per- ceeds, and disposal of common marital property, regardless son unfit for marriage.632 Using force to interfere in anyone’s of the income status of either party.644 Under the Marriage freedom of marriage is a criminal offense, punishable by up Law, property acquired by the husband and wife during to two years of imprisonment or criminal detention, or up to their marriage is classified as jointly owned, unless other- seven years of imprisonment if the victim is killed.633 This wise stipulated by a written agreement between the husband crime can only be investigated upon the filing of a formal and wife.645 Husband and wife possess equal rights upon complaint.634 Even children are prohibited from interfering joint property, and decisions regarding disposition of this with their parents’ matrimonial rights and cannot abandon property must be made by husband and wife following dis- their financial duty to support their parents upon a parent’s cussion and mutual agreement.646 marriage to a new spouse.635 The Marriage Law covers a number of rights and duties Although the right to marriage is protected under the law, that extend to both husbands and wives. They are to have it is not absolute and is subject to certain restrictions. Until equal status within the family, and must be faithful and respect recently, the Regulations on Management of Higher Educa- one another.647 Each has the right to engage in work, study, tion Students stipulated that students and graduate students and social activities without restriction or interference from would be automatically dismissed or expelled if they got mar- the other.648 They have a duty to practice family planning ried or had children while they are in school.636 This 15- and to protect, discipline, raise, and educate their children.649 year-old provision was abolished in the recent revision to the Husbands and wives also have a duty to provide for each oth- Regulations which came into effect on September 1, 2005, er, and if either fails to do so, the other may demand mainte- providing greater rights of self-determination for students.637 nance payments.650 The Marriage Law and the Regulations on Marriage Marriage and ethnic minorities Registration do not explicitly state that marriage is limited Ethnic minorities in autonomous regions and prefec- to members of the opposite sex. However, it is implied by tures may, with approval from a regional representative of references to “husband and wife,” “man and woman,” “male the central government, alter resolutions, decisions, orders, and female,” and “father and mother” in the language of the and instructions to incorporate local practices regarding mar- statutes.638 Furthermore, senior officials of the Ministry of riage and family.651 In some national autonomous regions, for Civil Affairs, which is in charge of marriage registration, have instance, the legal marriage age was changed to over 18 for stated that China is not prepared to recognize any marriage women and over 20 for men.652 between people of the same sex.639 D. DIVORCE With limited exceptions, couples must register with their Husbands and wives can file for divorce jointly or separately, local marriage registration department and obtain a marriage CHINA PAGE 55

and a woman’s right to seek a divorce is protected from interfer- exceptions);

ence.653 Grounds for divorce may include bigamy or cohabita- ■ earnings from investment of separate property;

tion; domestic violence, maltreatment, or desertion; gambling ■ retirement pension and arranged compensations for or drug addiction; and other serious actions that destroy mari- bankruptcy that both husband and wife have acquired tal affections.654 Restrictions are placed on the ability of a or will acquire; and

husband to seek divorce. A husband cannot apply for a divorce ■ housing purchased using marital assets, even if the while his wife is pregnant, within one year after the birth of a deed lists only one party.663 child, or within six months of a miscarriage or the termina- In contrast, the following are considered separate tion of a pregnancy as required by the government’s family property items:

planning policy.655 These rules apply unless a people’s court ■ prenuptial property possessed by only one spouse;

determines that it is necessary to accept the husband’s divorce ■ medical expenses, disability living allowances, and request.656 A woman’s ability to seek divorce during any of other property acquired by one party as a result of these periods is not restricted.657 personal injury;

Couples who did not register their marriage in accordance ■ property (including housing) acquired as an inheri- with the Marriage Law may be regarded as a married couple tance or gift as speciﬁed to one party in a will or gift for the purpose of divorce proceedings if they fulﬁlled the cri- contract; and

teria for marriage prior to the enactment of the Regulations ■ one party’s private articles for daily use or any other on Marriage Registration on February 1, 1994; otherwise, the individually held items.664 court is to treat such relationships as cohabitation.658 Where Notwithstanding these provisions, the Marriage Law per- both spouses wish to divorce, the marriage registration office mits spouses to identify in writing their prenuptial and joint will issue divorce certificates after confirming the intentions of property holdings.665 both parties and verifying that arrangements exist for the divi- Upon seeking a divorce, the spouses shall first negotiate sion of property and the care of children.659 When only one with each other and attempt to reach an amicable agreement spouse desires a divorce, he or she may either request mediation on the disposition of their jointly possessed property.666 If or appeal to a people’s court to initiate divorce proceedings.660 the parties fail to reach an agreement, “the people’s court shall The Marriage Law provides that the court shall grant a divorce make a judgment, taking into consideration the actual cir- if mediation fails due to any of the following circumstances: cumstances of the property and the rights and interests of the

■ mutual affection no longer exists; wife and child, or children.”667 Before property is distributed,

■ bigamy or cohabitation of a married person with any the law provides that “debts incurred jointly by the husband third party; and wife during their marriage shall be paid off out of their

■ domestic violence, maltreatment, or desertion of one jointly possessed property,” with any remaining property then party by another; divided between the spouses.668 If the jointly possessed prop-

■ the continuation of bad habits such as gambling or erty is insufﬁcient to pay the debts, the “parties shall work out drug addiction despite repeated admonition; an agreement with regard to the payment. If they fail to reach

■ separation of at least two full years due to incompat- an agreement, the people’s court shall make a judgment.”669 ibility; In general, only jointly possessed property is distributed

■ other circumstances leading to the loss of mutual upon divorce, but the Marriage Law does provide for the dis- affection; or tribution of individual property in some instances. The law

■ one party is declared missing, leading the other party maintains that even if the spouses stipulated that they were to ﬁle for divorce.661 individual owners of their property during the marriage, the According to the Civil Procedure Law, parties involved in spouse who assumed a greater responsibility as caretaker of divorce litigation must appear in person before the court even the children or elderly parents and who assisted in the other’s if they are represented by counsel.662 work may request compensation at the time of the divorce.670 For purposes of dividing property at divorce, property is If one party to the divorce is unable to meet minimum living classiﬁed either as jointly possessed or as solely belonging to standards after the division of property, the other party shall the husband or wife. Examples of jointly possessed property provide assistance, which may be in the form of residential or include the following: ownership rights to a dwelling.671 In addition, if the divorce

■ pay and bonus; is granted because one spouse has committed bigamy, cohab-

■ property obtained as an inheritance or gift (with ited with a third party, acted violently toward the family, or PAGE 56 WOMEN OF THE WORLD:

maltreated or deserted family members, the spouse “without duration of child support payments for parents who cannot fault” shall have the right to request additional compensa- come to an agreement on their own.686 Those who fail to pay tion for his or her losses.672 The party without fault may child support may be brought before the people’s court, and claim compensation either as part of the divorce decree or as impoverished petitioners may apply for legal aid from the state a separate matter within one year of the divorce, unless the in these cases.687 spouse has clearly surrendered such a claim at the time of the Parents not given custody of their children are granted divorce.673 Spouses may claim compensation for loss of mate- visitation rights.688 Visits must be negotiated between the rial goods as well as emotional harm for divorces granted by parties, with the court making a ruling when the parties are the people’s court.674 unable to agree.689 The custodial parent or legal guardian of Divorce settlements are legally binding unless there was a child may petition the people’s court to terminate visitation coercion or deception during the proceedings.675 Parties rights if the other parent’s visit endangers the child’s physical who attempt to conceal, deceive, destroy, or manipulate joint or mental health.690 property at the time of the divorce may be awarded none or Children under the age of 14 are eligible for adoption if a smaller share of the joint property and may be subjected they are orphaned or abandoned, or if their parents are unable to civil litigation.676 Furthermore, parties in violation of the to rear them.691 The consent of both parents must be obtained divorce decree through arrears in spousal maintenance, child prior to placing their child for adoption, unless one parent is support payments, noncompliance with division or inheri- deceased or cannot be found.692 If an adoptee is aged ten or tance of property, or visits to children, may be detained or older, his or her consent must be obtained prior to the adop- fined by local authorities.677 tion.693 Same-sex couples are not granted the right to adopt There is no legislation explicitly dealing with judicial sepa- children together. The Adoption Law states that when a per- ration. son with a spouse adopts a child, the male and female parties Marriages and divorces between Chinese citizens and for- must adopt the child in concert.694 Family planning regula- eign nationals are bound by the laws of the location in which tions hold that parents who have voluntarily given up a child the marriage or divorce occurred.678 Spousal maintenance for adoption may not have additional children.695 agreements are subject to the laws of the country to which the Ethnic minorities claimant is most closely connected.679 As long as one party to Although China does not have separate divorce and cus- the marriage is a Chinese citizen, the people’s court may exer- tody policies for minority groups, the Marriage Law and the cise jurisdiction over the case, and either spouse may petition Adoption Law give the country’s autonomous regions, where the court for recognition of a foreign divorce judgment.680 most minority groups reside, “the right to formulate certain Parental rights adaptations in keeping with the principles of [the law] and in Child custody may be awarded to either parent. Under light of the specific conditions of the local nationalities with the Women’s Rights Law, favorable consideration is given regard to marriage and the family.”696 In China’s Hubei prov- to a wife’s reasonable demands for custody, and to the rights ince, for instance, both the husband and wife must be present and interests of the children, especially if the wife has lost to express their views before a divorce is granted.697 the ability to bear children due to sterilization or other rea- E. ECONOMIC AND SOCIAL RIGHTS sons.681 The Marriage Law establishes that, in principle, the Ownership of property and inheritance mother is granted custody of an infant she is breastfeeding.682 The Civil Law grants women and men equal rights regarding If the husband and wife cannot agree on the custody of their protection of their personal property and the right to inherit weaned child, the people’s court shall make a judgment based under the law.698 Property rights are also addressed by the on the rights and interests of the child and the actual condi- Women’s Rights Law, which guarantees women an equal tions of both parents.683 right to property, including the allotment of agricultural land Whether children are placed in the custody of the mother and land for housing construction.699 or the father, they remain the children of both parents accord- The Women’s Rights Law additionally guarantees an equal ing to the law and both the mother and father have a continu- right to inherit property.700 This is also incorporated into the ing right and duty to raise and educate their children.684 The Law of Succession.701 Under these statutory schemes, prop- noncustodial parent also has a duty to bear some or all child erty is inherited in the first order by the spouse of the dece- support expenses, including living expenses, tuition and edu- dent, the decedent’s children, and the decedent’s parents, and cation costs, medical fees, and other relevant expenses.685 The without discrimination on the basis of gender.702 Daughters- people’s court will make a judgment about the amount and CHINA PAGE 57

in-law or sons-in-law are entitled to inherit property as suc- larly during menstruation, pregnancy, puerperium, lactation, cessors in the first order if they were primarily responsible for and menopause.720 Employers may not assign female workers taking care of their parents-in-law.703 A widow has the right to work in mines or in conditions involving intense physi- to dispose of inherited property as she wishes, and interfer- cal labor.721 Employers are required to ensure that the work ence with this right is prohibited.704 environment does not adversely affect women’s reproductive Husbands and wives, and unmarried, cohabiting couples capacity or the health of the next generation.722 are the first to inherit each other’s property regardless of The labor laws provide special protections for pregnant whether a widowed spouse remarries, and they may dispose women and lactating mothers, and employers are prohibited of the inherited property without interference.705 from revoking their labor contracts, decreasing their salary, or Within marriage, women have equal rights with their demoting them during these periods.723 Restrictions, how- spouses in the possession, use, proceeds, and disposal of joint ever, are placed on the physical intensity of work.724 When property.706 This right is not affected by the income status a worker reaches her seventh month of pregnancy, or when of either the husband or the wife.707 Property acquired by she is breastfeeding a child of less than one year, employers are the husband and wife during marriage is generally presumed prohibited from extending her hours, assigning her to night under the law to be held in joint possession, unless they oth- shifts, or assigning her to work in operations involving toxic erwise agree.708 Certain types of property, however, may be substances.725 If she is unable to perform her regular duties considered a spouse’s separate property. (See “Divorce” for because of pregnancy, the volume of work must be reduced or more information.) other work must be arranged.726 Pregnant workers or women Rural women and rights to agricultural land workers with a baby under one year of age are granted paid, Rights to agricultural land are guaranteed to women periodic breaks for resting or feeding.727 regardless of their marital status.709 The central government Women workers are entitled to a minimum of 90 days paid assigns agricultural land to local administrative bodies that maternity leave, of which 15 days may be allocated for prenatal utilize a membership system for land distribution.710 Legally, leave.728 In the event of multiple births, 15 days of additional women and men have equal rights to rural land, and no orga- leave are awarded for each additional child.729 Women who nization or individual may deprive women of their lawful experience a miscarriage are entitled to a portion of their paid rights.711 However, pervasive patriarchal attitudes generally maternity leave.730 Time spent for prenatal exams is paid, and result in the exclusion of women from these local bodies, and provincial regulations determine the duration and number of they are often deprived of their right to inherit the agricultural prenatal visits pregnant workers are entitled to during preg- land of their father or spouse.712 nancy.731 Under special circumstances, pregnant workers may Labor and employment petition the local health department to increase the number of In 2002, 335.52 million women, or 45.5% of the total prenatal exams.732 Female workers, regardless of their repro- female population, were employed in China.713 In recent ductive status, are entitled to maternity insurance and other years, women have grown to comprise 38% of urban social insurance benefits.733 Workplaces staffed with a large employees as an additional 5.65 million have entered the number of female workers are required to individually or urban workforces.714 jointly establish a gynecological clinic, a lounge for pregnant Under the constitution, citizens have the right as well as workers, a feeding room, a nursery, and a kindergarten, and the duty to work.715 Pursuant to the constitutional principle endeavor to solve any difficulties female workers experience in that women enjoy equal rights with men in all areas of life, the areas of reproductive health, feeding, and child care.734 the government shall provide “equal pay for equal work,” and As the Chinese population ages, a greater number of older equal opportunities to women for training.716 women are present in the workforce, and special provisions The Labor Law enacted in 1994 reaffirms the principle have been established to address menopausal issues. Women of equal pay for equal work and calls for the distribution of over 45 who suffer from adverse symptoms of menopause are wages according to work.717 The law prohibits sex discrimi- given less work and are entitled to at least two breaks of no less nation and grants women equal rights with men in employ- than 30 minutes each.735 ment.718 Employers are forbidden from imposing higher If employers violate a female worker’s rights, they are recruitment standards for women or from using sex as a basis ordered by the labor department to correct the situation and for excluding female workers, unless the work is deemed pay a fine.736 Employers are responsible for compensating unsuitable for women.719 Labor laws restrict women from any woman who has been harmed by their violation of the working in certain areas due to female physiology, particu- law, and the persons in charge may be investigated for crimi- PAGE 58 WOMEN OF THE WORLD:

nal liability if the violation leads to serious injury, death, or income … irrespective of … sex.”750 Trade union committees substantial loss of or damage to personal property.737 In cases for female workers are allowed in workplaces with relatively where employers assign pregnant or lactating females to work large numbers of women. In workplaces with relatively small with toxic substances, the local health department will issue a numbers of women, a representative of female workers must warning, and if the situation is not rectified in a timely fash- be included on a trade union committee.751 If the special ion, it may fine the employer CNY 50,000 to CNY 300,000 rights and interests of female workers are infringed upon by (USD 6,041 to USD 36,247), or assess criminal liability where an employer, the trade union shall formally lodge a complaint serious poisoning occurs.738 with the employer and “negotiate an appropriate remedy.”752 Employment statutes provide procedural mechanisms for The Regulation on Labor and Social Security Inspection workers and employers seeking to resolve labor disputes.739 also urges labor protection monitoring committees of the Laborers have the right to criticize, report, or file charges local labor department to ensure that employers comply with against employers for endangering the safety of their life or the law against child labor, observe special protection laws health.740 The Regulations on Settlement of Labor Disputes for women and minors, and assign penalties for any viola- in Enterprises instruct disputing parties to first attempt to tion.753 The Law on Safety in Mines stipulates that mining negotiate a solution. If the parties are unwilling to negotiate enterprises must practice special labor protections for female or if negotiations fail, the case may be referred to the labor workers and may not assign women or adolescents to any dispute mediation committee, which is composed of repre- underground work.754 sentatives of employees and employers as well as representa- The retirement age for Chinese women is generally five tives from trade unions, one of whom chairs the committee.741 years lower than that of their male counterparts. Professional If mediation fails or if either party wishes to apply directly for women working for any institution or industry run by the arbitration, they may appeal to the labor dispute arbitration government reach retirement age at 55, but men may work committee at the county, city, or district level. These arbi- until age 60. For blue-collar workers, the retirement age is 50 tration committees comprise persons from the trade union for women and 55 for men.755 Discrimination against women council, the government’s labor department, and the eco- in the state’s retirement policy was recently outlawed by the nomic administrative department.742 If one or both parties revision of the Women’s Rights Law, which shall be effective refuse to accept the arbitration awards, they may bring the on January 1, 2006.756 case before the people’s court.743 Access to credit The Women’s Rights Law, like the Labor Law, guaran- Chinese women and men have equal rights with regard tees women an equal right to work and equal pay for equal to access to credit.757 Since 1996, the central and local gov- work.744 The law provides that no employer should refuse to ernments have made budgetary allocations to support hire women, or set a higher threshold for hiring women based low-interest or preferential loans that are only available to on gender, except in industries or positions for which women women.758 These loans are generally underwritten by the are deemed unfit.745 ACWF, which expanded its microcredit scheme nationwide In the interest of women’s health and safety in the workplace, in 1994 to include low-income rural women, urban female the law states that women should not be assigned to unsuit- entrepreneurs, and urban female laid-off job seekers.759 These able work or labor and special protective measures should be credit programs are funded by the central government, local employed during menstruation, pregnancy, childbirth, and people’s governments, and international organizations such as lactation.746 Like the Labor Law, the Women’s Rights Law the UNDP.760 prohibits the dismissal of female workers from employment Education or reducing their salary based on pregnancy, maternity leave, The total enrollment rate of children in primary schools in or lactation.747 The law additionally forbids employers from 2002 was 98.58%.761 The school attendance rate for girls has terminating women due to marital status.748 steadily improved since the 1990s, reaching 98.53% in 2002.762 Trade unions are obligated to uphold the constitution and The national female illiteracy rate has dropped from 90% in strive for the protection of women’s rights and interests with- 1949 to 14% in 2002.763 in the scope of their work.749 The rights and obligations of Although women and girls have achieved greater equal- trade unions are governed by the Trade Union Law. Trade ity in access to education, discrepancies are still prevalent, union membership is available to “all … workers in enter- particularly among the children of migrant workers and in prises, institutions, and government departments within … rural areas where there are few means of enforcing antidis- China … who rely on wages or salaries as their main source of crimination statutes. This is particularly evident in outlying CHINA PAGE 59

mountain regions and areas inhabited by ethnic minorities, them,777 except in the event of illness or other special cir- where poverty-stricken families cannot afford to send their cumstances.778 Parents or guardians who fail to send their children to school. Every year, about 1 million students, of school-age children or adolescents to school are subject to whom 70% are girls, are forced to drop out of school to help official admonishments.779 support their families.764 National statistics show that boys Organizations and individuals are prohibited from receive an average of 1.07 more years of education than girls— employing school-age children or adolescents who should be an improvement over the 2.9 years recorded in 1991.765 These enrolled in compulsory education.780 Violators are admon- issues were addressed in the National Education Develop- ished and ordered by the local people’s government to ter- ment Program and circulars of the Ministry of Education, all minate the illegal employment of minors.781 If the violation of which emphasized the importance of educating girls and is serious, offenders may also be fined, ordered to suspend outlined measures for narrowing the education gap between business operations, or have their business license revoked.782 boys and girls.766 The law also prohibits religious justifications for withdrawing The constitution explicitly states that citizens have “the from compulsory education.783 Individuals or organizations duty as well as the right to receive education” and that the that breach these provisions may be subject to administra- government “promotes the all around moral, intellectual, and tive sanctions or penalties, ordered to provide compensation if physical development of children and young people.”767 It damage is caused, and assigned criminal responsibility if the also notes that parents have the duty to rear and educate their circumstances warrant such an investigation.784 minor children.768 The Compulsory Education Law and the The Women’s Rights Law guarantees women equal rights Education Law reiterate the right of all citizens to an educa- to education.785 Accordingly, parents and guardians must tion, irrespective of sex.769 ensure that girl children and adolescent girls receive compul- The Compulsory Education Law, introduced in 1986, sory education.786 The law parallels the Compulsory Educa- requires both males and females to complete nine years of tion Law, which maintains that parents or guardians will be education beginning at six years of age and including six criticized by local people’s governments if they fail to send years of primary and three years of secondary schooling.770 girls to school without an official exemption.787 In recogni- Once universal primary education has been achieved, the tion of the fact that girls face particular difficulties in receiv- government will seek to make middle school education coming an education, the government, society, and schools are all pulsory as well.771 charged with taking effective steps to ensure that girls prop- The Compulsory Education Law stipulates that “the State erly receive compulsory education.788 shall not charge tuition for students receiving compulsory Beyond compulsory education, the Women’s Rights Law, education,” and the Education Law prohibits collection of fees the Education Law, and the Higher Education Law grant from students in violation of state regulations.772 The State women equal rights to all levels of education.789 The Edu- Council and local governments are responsible for covering cation Law and the Women’s Rights Law obligate schools all expenses associated with compulsory education and must and governmental departments of education to ensure that provide subsidies and personnel for the implementation of women enjoy equal rights and access to education, specifi- compulsory education in minority and low-income areas.773 cally in regard to enrollment, admission to institutions of However, official statistics indicate that government funding higher education, advancement, practical training, confer- supported only 53% of education expenditure in 2000, and ment of academic degrees, and opportunities for studying only 8% of that amount came from the central government, abroad.790 Additionally, schools are directed to take adoles- with a mere 2% for compulsory education.774 Ultimately, the cent girls’ physiologies into account and provide appropriate financial burden of compulsory education falls upon private accommodations in order to promote their healthy mental citizens, who have shouldered the costs—estimated at CNY and physical development.791 200 billion (USD 24.2 billion) over the past decade—through Local people’s governments are also responsible for includ- taxes and public school fees.775 ing literacy programs for women in their continuing educa- Local people’s governments are required by law to cre- tion programs and plans to fight illiteracy.792 The Vocational ate conditions that are conducive for all school-age children Education Law and the Law on the Protection of Minors and adolescents to receive compulsory education.776 When require all levels of government to adopt vocational education children have reached school age, their parents or guard- and technological training for women and minors.793 Finally, ians must send them to receive compulsory education for the Women’s Rights Law directs all state organs, social orga- the entire period required by law and may not withdraw nizations, enterprises, and institutions to afford women equal PAGE 60 WOMEN OF THE WORLD:

rights with men when engaging in scientific, technological, people was essential for the effective implementation of its literary, artistic, and other cultural activities.794 population policy.809 As a result, in 1988 the Ministry of The China Youth Development Foundation (CYDF) is Education and the National Population and Family Planning an NGO founded by the All-China Youth Federation in 1989 Commission instructed high schools nationwide to incorpo- with the mission of promoting education, science and tech- rate sex education into their curricula.810 The Ministry of nology, culture, sports, health, and social welfare for Chinese Education reiterated the importance of adolescent sex edu- youth and children.795 Among the programs implemented cation, comprising studies of sexual physiology, psychology, by the CYDF is Project Hope, a policy initiative launched and morality, in the 1993 Guidelines to Health Education for in 1989 to lower dropout rates and improve education facili- University Students.811 ties in poverty-stricken areas.796 Since then, the CYDF has Sex education is also addressed in several related poli- assisted more than 2.6 million students from underprivileged cies and laws. The Population and Family Planning Law families to enroll or return to school and has received more instructs schools to conduct education in physiology, health, than CNY 2.2 billion (USD 265.8 million) in donations.797 puberty, and sexual health in an age-appropriate manner.812 At least 10,000 Hope Primary Schools for rural students have The Women’s Rights Law requires that schools tailor their been constructed or rebuilt; 150 of them are equipped with educational programs and facilities to meet the physical, men- computer labs that have internet access to support distance tal, and emotional needs of female students.813 The Law on learning programs.798 Over 20,000 scholarships were awarded the Protection of Minors also calls for schools to provide “edu- to excelling students to facilitate the completion of their high cation in puberty knowledge.”814 school and university studies, and 113,000 five-year scholar- Despite official support, there is a lack of comprehensive ships were granted to elementary school students to cover systematic sex education in China815 and resource materials basic school fees.799 The project is available in 16 provinces are not readily available, especially to women.816 Censorship and 27 urban cities.800 The foundation has also supported of sexual content817 and conservative ideology on sexuality other activities designed to raise literacy, science and tech- has often meant that sex education programs in Chinese nology achievements, and computer knowledge of children schools are inadequate and discussions are usually limited to and adolescents.801 In 2005, the foundation launched the Jin- adolescent physiology, hygiene, sexual morality, and usage of longyu Fund to provide education subsidies for the nearly 20 contraception to limit population growth and promote chas- million school-aged children of immigrant workers, 10% of tity rather than ensuring safe sex.818 whom are at risk of dropping out due to poverty.802 Recently, however, the quality of sex education has The ACWF and the China Association for Sciences and improved. The Ministry of Education recently held that all Technology (CAST) have implemented education and skills- provincial education departments should institute HIV/AIDS building programs with the support of UNICEF for women prevention curricula in all junior middle schools, senior high and girls throughout the country.803 The CAST programs schools, and vocational high schools by the end of 2005.819 provide girls aged 12–17 with life skills training.804 Under the Provincial departments are employing diverse methods to ACWF’s Spring Buds project, female dropouts were reinstated implement these programs. In Shanghai, for example, lec- in formal schooling in 29 provinces, and “Spring Buds Classes tures begin in fourth grade about HIV/AIDS and how it is for Girls” in literacy, mathematics, and adolescent health were transmitted, and continue through senior high school where established in poverty-stricken areas.805 Launched in 1989, the lessons focus on AIDS prevention and control, and nondis- ACWF’s Double Learning and Double Competing program crimination toward people with HIV/AIDS.820 addresses illiteracy and provides agriculture skills training The first comprehensive domestic sex education textbook among rural women. Since its inception, 120 million rural for teenagers, entitled Thoughts of Teenagers, was released in women have participated in the program, and many pro- 2004. The book covers sexual psychology, sexual physiology, gram facilities have been upgraded to comprehensive schools sexual health, sexual morality, marriage, and family planning, for women.806 In urban areas, the ACWF has implemented as well as culturally taboo topics of masturbation, contracep- activities for female high school students aiming to strengthen tion, sexual harassment, AIDS, and homosexuality.821 In 2003, their self-esteem, self-confidence, and independence.807 the first sex education videos were issued to teach primary Sex education and high school students about sexual behavior, contracep- Adolescent sex education is a mandatory component of tion, and HIV prevention.822 high school curricula in China.808 In the early 1980s, the The Shanghai Municipal Education Commission has Chinese government recognized that sex education for young developed a comprehensive program addressing more than CHINA PAGE 61

200 topics in physiology, psychology, and sociology relating to Incest drug addiction, AIDS prevention, and safe sex.823 The pro- There is no specific legislation that prohibits or criminal- gram begins in fourth grade with lectures on the physiologi- izes incest. However, the Marriage Law provides that no cal differences between boys and girls and continues through marriage may be contracted under a circumstance in which sixth grade, where students are taught to adapt to physiologi- the male party and the female party are lineal relatives by cal changes in puberty.824 In middle school, students are given blood or collateral relatives by blood up to the third degree information about HIV/AIDS and by the end of high school of kinship.837 are made aware of HIV/AIDS prevention through safe sexual Domestic violence practices such as condom use.825 According to reports by the ACWF, domestic violence occurs in three out of every ten families and is cited in three- F. PROTECTIONS AGAINST PHYSICAL AND SEXUAL fifths of China’s divorce cases.838 There is no specific national VIOLENCE legislation on domestic violence, but the constitution, the Rape Marriage Law, and the Criminal Law address the issue.839 Rape, whether committed by violence, coercion, or other The constitution and the Marriage Law prohibit the “mal- forcible means, is punishable by a minimum of three years’ treatment of … women and children.”840 The Criminal Law and a maximum of ten years’ imprisonment.826 Sexual rela- provides that serious mistreatment of a family member is a tions with a girl under the age of 14 is regarded as rape and crime punishable by a maximum of two years’ imprison- punishable by a more severe sentence—either a minimum ment or seven years’ imprisonment if serious injury or death of ten years’ imprisonment, life imprisonment, or death.827 is caused.841 The perpetrator may be given a lesser prison Harsher penalties are imposed if rape occurs under several sentence, placed under criminal detention, or subjected to circumstances, including: close monitoring by the police with restrictions on his or her ■ the rape of a woman “before the public in a public mobility and other rights.842 place”; The Supreme People’s Court of China defines domestic ■ the rape of a woman by “one or more persons in suc- violence as “any act that causes physical, psychological, and cession”; and other kinds of damage to other family members through bat- ■ causing the victim serious injury, death, or other seri- tering, binding, brutality, forcible restriction to physical free- ous consequences.828 dom, or other means. Frequent or persistent acts of domestic While the general age for criminal responsibility is 18, for violence constitute abuse.”843 Under the provisions of the certain serious crimes, including rape, the age is lowered to current Marriage Law, victims of domestic violence or mal- 14.829 A person between the ages of 14 and 18 who commits treatment by family members are entitled to assistance from rape is, however, subject to a reduced sentence.830 the neighborhood or village committee to dissuade the abuser The molestation or humiliation of a woman through vio- and provide mediation.844 The police are responsible for stop- lence, coercion, or other means is also a crime.831 Molestation ping the violence and assigning administrative penalties to the or humiliation is punished by a sentence of up to five years’ perpetrators of domestic violence upon the victim’s request.845 imprisonment or criminal detention.832 Heavier punishment Domestic violence and maltreatment are grounds for divorce is meted out in cases of child molestation.833 The sentence is according to the Marriage Law, and the victim may request also increased to a minimum of five years’ imprisonment if damage compensation.846 the perpetrator assembles a crowd to commit the molestation Where domestic violence or maltreatment of family mem- or humiliation, or commits the crime in public.834 bers constitutes a criminal offense, the victim may bring a A woman who injures or kills her attacker in order to voluntary prosecution in a people’s court in accordance with defend herself from rape or physical assault is protected from the Criminal Procedure Law.847 The police must investigate criminal prosecution. The law provides that there is no the case and the people’s procuratorates may prosecute the criminal responsibility for those who defend themselves in offender as stipulated under the Criminal Law.848 the face of any violent crime, including physical assault or The recent revision to Law on the Protection of Rights rape, that seriously endangers personal safety.835 There is no and Interests of Women in August 2005 includes new pro- law specifically regarding marital rape, but legal scholars have visions that address domestic violence.849 The Law explic- recognized marital rape if the marriage is forced, in certain itly forbids domestic violence against women and instructs circumstances such as during separation, or after a divorce has the State, various government agencies and NGOs to take been filed for.836 measures to prevent domestic violence and render assistance PAGE 62 WOMEN OF THE WORLD:

to female victims of domestic violence.850 The ACWF and 10,000 (USD 604 to USD 1,208), and/or conﬁscation of women’s NGOs have established shelters, hotlines, and coun- property.866 Death, life imprisonment, or a minimum of ten seling centers for battered women and conduct training ses- years’ imprisonment shall apply if the violator is found guilty sions about how to stop violence for the police force.851 of the following:

Sexual harassment ■ forcing a girl under age 14 to engage in sex work;

The ﬁrst national legislation against sexual harassment of ■ forcing many people to engage in sex work or forcing women was introduced in the 2005 revision of the Women’s a person to engage in sex work many times;

Rights Law, which will come into effect on January 1, 2006.852 ■ forcing the victim to engage in sex work after raping The law prohibits sexual harassment against women, and vic- her; or

tims have the right to file a complaint against the perpetra- ■ causing death, serious bodily injury, or other severe tor with his or her work unit or relevant agency.853 Further consequences to the victim.867 definitions and punishments for sexual harassment remain to Employees of catering, transportation, or entertainment be determined.854 services who utilize their position to violate prohibitions on In 2003, the first sexual harassment lawsuit was tried and the sex work are also subject to penalties under the Criminal court of first instance ruled in favor of the plaintiff.855 As no Law.868 Hotels, caterers, and entertainment and taxi services sexual harassment legislation existed at the time, the suit was have a responsibility to prevent sex work within their work- filed on the grounds of “safeguarding [the victim’s] reputation” places, and knowingly failing to stop sex work is punishable and the perpetrator was ordered to apologize and pay monetary by fines of CNY 10,000 to CNY 100,000 (USD 1,208 to USD compensation to the victim for psychological harm.856 How- 12,082), the suspension of business, or the revocation of an ever, the appellate court concluded that the harassment did not operating license.869 Obstructing the police from uncovering cumulate in serious effects on the victim and overturned the sex work through concealing or assisting violators is punish- ruling.857 Of the few sexual harassment cases filed since then, able by up to three years’ imprisonment, criminal detention, most have been dismissed due to lack of evidence.858 public surveillance, or fines.870 The state confiscates any ille- Commercial sex work and sex-trafficking gal incomes gained through sex work.871 The Chinese government strictly prohibits commercial The Women’s Rights Law prohibits abducting, trafficking, sex work and penalizes sex workers under the Criminal Law, kidnapping, buying, and obstructing the rescue of women.872 several NPC decisions, and various administrative measures. The people’s governments and various government agencies, People who voluntarily engage in sex work are punished by including the MOH, are responsible for taking timely mea- local police forces under the Regulations on Administrative sures to assist women victimized by these crimes and shall Penalties for Public Security.859 They may be detained for a work in cooperation with women’s federations to provide vic- maximum of 15 days, given a warning, made to sign a state- tims with recovery assistance.873 ment of repentance, given custodial “re-education through The NPC issued a decision in 1991 to clarify penalties labor” for six months to two years, and charged concurrent and disciplinary measures against those who abduct, traf- fines of up to CNY 5,000 (USD 604).860 Repeat offenders are fic, or kidnap women and children. Some provisions of the subject to re-education through labor and a maximum fine of decision were incorporated into the 1997 revised Criminal CNY 5,000 (USD 604).861 Sex workers must undergo manda- Law.874 Under the revision, those involved in abducting or tory testing and treatment for STIs.862 Those who knowingly trafficking women or children are sentenced to five to ten engaged in sex work and are found to be infected with a STI years’ imprisonment and a concurrent fine of up to CNY can be sentenced to a maximum of five years’ imprisonment, 10,000 (USD 1,208).875 Under the following circumstances, criminal detention, and a concurrent maximum fine of CNY the crime is considered especially serious and the offender 5,000 (USD 604).863 may concurrently have his property confiscated and be sen- The Criminal Law, revised by the Decision of the Stand- tenced to death:

ing Committee of the NPC on the Strict Prohibition against ■ being a ringleader of a gang engaged in abduction or Prostitution and Whoring of 1991, punishes people who orga- trafﬁcking of women or children;

nize, assist, force, lure, shelter, or procure any other person ■ abducting or trafﬁcking three or more women and/ or persons to engage in sex work.864 This is echoed in the or children;

Women’s Rights Law.865 ■ raping a woman who is being abducted or trafﬁcked;

People found guilty of these crimes are subject to impris- ■ enticing or forcing a victim of trafficking or abduc- onment of five to ten years, fines of CNY 5,000 to CNY tion to engage in sex work, or selling the victim to CHINA PAGE 63

another who would force her into sex work; in women and children, which has successfully eliminated

■ kidnapping a woman or child by means of violence, human trafﬁcking in several remote areas in China.888 coercion, or anesthesia for the purpose of selling the Sexual offenses against minors victim; The molestation or humiliation of a female minor through

■ injuring or killing a victim of trafﬁcking, or the violence, coercion, or any other forcible means is punishable victim’s relatives; by a minimum of ﬁve years’ imprisonment, and more if the

■ abducting and trafﬁcking a woman or child abroad; or case involves a child.889

■ kidnapping a baby or other person for the purpose of Any instance of sexual relations with a girl under the age selling the victim or extorting money or property.876 of 14 is considered rape under the Criminal Law and is pun- Buyers of trafficking victims are subject to criminal liabil- ishable by a minimum of three years’ imprisonment.890 The ity, a maximum of three years’ imprisonment, criminal deten- sentence is raised to a minimum of ten years’ imprisonment tion, or public surveillance.877 If the buyer violates the rights if the circumstances are particularly “flagrant,” if the person of the victims through forced sexual relations, restriction of has had sexual relations with several underage girls, or if the their personal freedom, or maltreatment, they face imprison- victim suffers injury, death, or other serious consequences.891 ment of up to ten years and other penalties under the Crimi- Under those circumstances, a sentence of life imprisonment nal Law. 878 In the event that the buyer does not maltreat the or death may be imposed.892 victims or obstruct their return to their place of residence, The trafficking of minor young women is a serious con- they are exempted from any criminal responsibility.879 cern in China. Abducting, kidnapping, buying, trafficking The law stipulates that the government has a duty to rescue in, fetching, sending, or transferring of a minor is punishable victims from kidnapping, trafficking, and abduction, and state by ten years’ to life imprisonment or death if the circum- functionaries who fail to make a rescue effort upon request stances are especially atrocious.893 are sentenced to two to seven years’ imprisonment.880 Any- one who interferes with the government in rescuing a sold woman or child is penalized by up to three years’ imprisonment, criminal detention, public surveillance, and/or fines.881 Between 2001 and 2003, the Chinese government rescued 43,215 women and children and arrested 22,018 traffickers.882 In 2003, the police rescued more than two thousand trafficked women and children who were forced into sex work.883 The Ministry of Public Security (MPS) and international organizations have established several projects to combat the trafficking of women and children. In one project, the MPS, the ACWF, and UNICEF issued instruction booklets for rural girls to teach them relevant laws and regulations, and how to recognize and protect themselves against human traffickers.884 Since 1999, the MPS in cooperation with UNICEF has implemented the Elimination of Trafficking: Zero Tolerance Plan, which seeks to eliminate the high demand for human trafficking through education, advocacy, crackdowns, and intolerance for the practice.885 The project provides protection, recovery assistance, and community reintegration services for victims and trains law enforcement officers about women and children’s rights.886 Future goals of the project include provision of counseling services, life skills training that covers reproductive health and women’s and children’s rights, and opportunities for small income-generating work-tasks for victims.887 Since 2000, the International Labor Organization and the International Program on the Elimination of Child Labor have implemented a project on combating trafficking PAGE 64 WOMEN OF THE WORLD:

ENDNOTES

1. Central Intelligence Agency (CIA), U.S. Government, China, in The World 27. Association of Southeast Asian Nations (ASEAN), Overview, http://www. Factbook (2005), http://www.cia.gov/cia/publications/factbook/geos/ch.html (last aseansec.org/147.htm (last visited Apr. 29, 2005). ASEAN members include Brunei, updated June 14, 2005). Burma, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam. Id. 2. Bureau of South Asian Affairs, U.S. Department of State, Background Notes: 28. Xianfa [Constitution], art. 33 (2004), amended by Amendments to the Constitution China (2005), http://www.state.gov/r/pa/ei/bgn/18902.htm (last visited June 29, 2005). of the People’s Republic of China of Mar. 14, 2004, art. 24. See also Robert L. Worden et al., Introduction to Federal Research Division, Library 29. Id. art. 1 (2004). Guided by “the philosophy of Marxism-Leninism, Mao Zedong Thought, of Congress, Country Studies: China ¶¶ 4–5 (Robert L. Worden et al. eds., 1987), Deng Xiaoping Theory and the important thought of the ‘Three Represents’ ” Id. pmbl. http://lcweb2.loc.gov/frd/cs/cntoc.html (last visited Mar. 2, 2005) [hereinafter Library ¶ 7. Mao Zedong Thought consists of the sayings and writings of Mao that adapted of Congress, Country Studies: China]. Marxism-Leninism according to Chinese circumstances that served as a major national 3. Xianfa [Constitution], pmbl. ¶ 5 (2004); U.S. Department of State, supra note ideology until his death in 1976; Deng Xiaoping Theory encapsulates the reforms and 2; Library of Congress, Country Studies: China, supra note 2, ch. 1, The People’s policies Deng initiated that focused on economic development rather than political Republic of China. ideology. Library of Congress, Country Studies: China, supra note 2, glossary. 4. Xianfa [Constitution], pmbl. ¶ 7 (2004); Library of Congress, Country Studies: 30. Xianfa [Constitution], art. 3 (2004); Democratic centralism is “a system where China, supra note 2, ch. 1, The Transition to Socialism, 1953-57. Id. the people influence the policies of the government and party members influence 5. U.S. Department of State, supra note 2. See also Library of Congress, Country the policies of the party while the government and party maintains centralized Studies: China, supra note 2, Introduction, ¶¶ 4–5. administrative power. Within representative and executive organizations, the minority 6. U.S. Department of State, supra note 2; Library of Congress, Country Studies: abides by the decisions of the majority, and lower bodies obey the orders of the higher China, supra note 2, ch. 1, The Transition to Socialism, 1953-57. level organizations.” Library of Congress, Country Studies: China, supra note 2, 7. U.S. Department of State, supra note 2; Library of Congress, Country Studies: glossary. China, supra note 2, ch. 1, The Great Leap Forward, 1958-60, ch. 5, The Great Leap 31. Xianfa [Constitution], art. 2 (2004). Forward, 1958-60. During the “Leap” (1958-1961), at least 14 million people died of 32. Central Intelligence Agency (CIA), supra note 1. starvation. Id. 33. China Internet Information Network, China’s Political System, ch. VII, 8. See Library of Congress, Country Studies: China, supra note 2, ch. 1, The Great http://www.china.org.cn/english/Political/25060.htm (last visited Mar. 08, 2005); Leap Forward, 1958-60. Xianfa [Constitution], arts. 62(4), 79 (2004). 9. U.S. Department of State, supra note 2; Library of Congress, Country Studies: 34. Xianfa [Constitution], art. 79 (2004). China, supra note 2, ch. 1, Readjustment and Recovery, 1961-65, ch. 11, Marxism- 35. Id. arts. 80–81. Leninism-Mao Zedong Thought Re-Thought. 36. Id. art. 85. 10. See Library of Congress, Country Studies: China, supra note 2, ch. 1, The 37. Id. art. 88; Ministry of Justice, Government of the P.R.C., The Central Militant Phase, 1966-68. Administrative System, ch. I, § 2(1)(2) (2004), http://www.legalinfo.gov.cn/english/ 11. From the 1970s until the 1990s, Deng served as the de facto leader of China. He was StateOrgans/stateorgans2_1.htm (last visited June 9, 2005). the most influential figure of the CPC and commanded heavy respect from politicians 38. The president nominates the premier, who in turn nominates other State Council and the public alike. He assumed the responsibilities of Premier Zhou Enlai (term of members, who are appointed once approved by the National People’s Congress or its office from 1949-1976) while Zhou battled cancer, then displaced Mao’s chosen successor Standing Committee. Xianfa [Constitution], art. 86 (2004). Hu Guofeng and ordered the house arrest of Premier Zhou Ziyang (term of office from 39. Id. art. 87. 1983-1987) until Zhou’s death. See Library of Congress, Country Studies: China, 40. State Council Institutional Restructuring Plan (2003) (adopted by the Tenth NPC); supra note 2, Introduction, ¶¶ 4–5. China’s Government Restructuring Plan Adopted, People’s Daily (China), Mar. 10, 2003; 12. Ministry of Commerce, Government of the P.R.C., Report on the Circular of the State Council Concerning Organizational Structure (1998) (referring to Development of China’s Market Economy 2003, ch. II, § I–II (2004), www.china. the Restructuring Plan for Component Departments under the State Council adopted org.cn/english/2003chinamarket/79520.htm (last visited Sept. 2, 2005). by the Ninth NPC). 13. Development strategy aimed to achieve advanced industrialization by 2000 through 41. State Council Institutional Restructuring Plan, supra note 40. modernization of industry, agriculture, science and technology, and national defense. It 42. Id.; China’s Government Restructuring Plan Adopted, supra note 40; Circular of the State was first announced in the Third Five-Year Plan (1966-70) by Premier Zhou Enlai and Council Concerning Organizational Structure, supra note 40. officially adopted by the CPC in December 1978. Library of Congress, Country 43. Xianfa [Constitution], art. 92 (2004). The State Council submits regular reports Studies: China, supra note 2, glossary, ch. 1, China and the Four Modernizations, 1978- on its work to the NPC or its Standing Committee. Id. 82. 44. Id. art. 89(1). So long as it is in accordance with the Constitution and the law. Id. 14. Central Intelligence Agency (CIA), supra note 1; U.S. Department of State, 45. Id. arts. 89(3)–(5). supra note 2. 46. Id. arts. 89(1), (6)–(8), (10). 15. President Jiang Zemin developed the governing theory of the “Three Represents,” 47. Id. art. 89(2); Organic Law of the National People’s Congress of the P.R.C., art. 9 where the CPC functions as a “faithful representative of the requirements in the (1982). development of advance productive forces, the orientation towards advanced culture, and 48. U.S. Department of State, supra note 2. “[P]ut into practice the guiding principles the fundamental interests of the broadest masses of the people of China. Three Represents: of the 16th National Congress of the CPC under the leadership of the CPC … in New Thinking, Great Thought, People’s Daily (China), http://english.people.com.cn/ accordance with the [Communist] Party Central Committee’s instructions …” Wen zhuanti/Zhuanti_353.shtml (last visited Mar. 18, 2005). Jiabao, Report on the Work of the Government 2004, Address at the Second Session 16. Central Intelligence Agency (CIA), supra note 1; U.S. Department of State, of the Tenth National People's Congress (Mar. 5, 2004) (Mr. Wen is the State Council supra note 2. premiere) (transcript available at http://www.china.org.cn/english/government/90522. 17. Central Intelligence Agency (CIA), supra note 1 (estimates as of July 2005); U.S. htm). Department of State, supra note 2. 49. Xianfa [Constitution], art. 5 (2004). 18. National Bureau of Statistics of China, Government of the P.R.C., 50. Library of Congress, Country Studies: China, supra note 2, ch. 10, The State Statistical Communiqué of the People’s Republic of China on the 2004 National Council. Economic and Social Development (Feb. 28, 2005), http://www.stats.gov.cn/english/ 51. Id. ch. 10, The Cadre System. newsandcomingevents/t20050228_402231939.htm. 52. Administrative License Law of the P.R.C., Presidential Order No. 7 (2003) (effective 19. See Central Intelligence Agency (CIA), supra note 1; U.S. Department of State, July 1, 2004). supra note 2. 53. Xianfa [Constitution], arts. 57–58 (2004); Legislation law of the P.R.C., 20. Central Intelligence Agency (CIA), supra note 1. Presidential Order No. 31, art. 7 (2000). 21. U.S. Department of State, supra note 2 (estimates of 100 million Buddhists, 20 54. Xianfa [Constitution], arts. 3, 59–60 (2004); Electoral Law of the National People’s million Muslims, 5 million Catholics and 15 million Protestants). Congress and Local People’s Congress of the P.R.C., arts. 15–16, 24 (2004). The zoning of 22. Id. electoral districts is determined by voters’ residence or by their employment units. One 23. Central Intelligence Agency (CIA), supra note 1. to three (based on population) deputies are elected from each electoral district to the local 24. See United Nations, List of Member States, www.un.org/Overview/unmember. people’s congress, who then elect a number (set by the NPC Standing Committee) of html (last visited Mar. 4, 2005). deputies to the NPC. Id. art. 24. 25. United Nations Security Council, Member and Presidency of the Security 55. The definition for an “appropriate” number of female delegates is non-specific, stating Council in 2005 (2005), http://www.un.org/Docs/sc/unsc_members.html (last visited only that it should be “proportional.” Electoral Law of the National People’s Congress June 9, 2005). and Local People’s Congress of the P.R.C., art. 6 (2004). 26. Asia-Pacific Economic Cooperation (APEC), Member Economies (2004), 56. Xianfa [Constitution], art. 70 (2004). http://www.apec.org/apec/member_economies.html (last visited June 9, 2005); World 57. Ministry of Justice, Government of the P.R.C., The System of People’s Trade Organization (WTO), Understanding the WTO: Members and Observers Congress, ch. III, § 3 (2004), http://www.legalinfo.gov.cn/english/StateOrgans/ (2005), http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited stateorgans1.htm (last visited June 10, 2005). June 9, 2005). 58. Xianfa [Constitution], art. 61 (2004). NPC sessions may also be convened upon CHINA PAGE 65

the request of at least one-fifth of the NPC. Id. 88. Id. art. 6; Xianfa [Constitution], art. 115 (2004); Legislation law of the P.R.C., 59. Id. arts. 62(1)–(3); Legislation law of the P.R.C., Presidential Order No. 31, art. 7 Presidential Order No. 31, art. 66 (2004). See Information Office of the State (2000). NPC is the only body empowered to enact national law on certain issues, such Council, Regional Autonomy for Ethnic Minorities in China (2005), http:// as matters of state sovereignty; structure and authority of legal and government organs; www.china.org.cn/e-white/20050301/index.htm (last visited Mar. 9, 2005). crimes and criminal sanctions; and deprivation of political rights or personal freedom. 89. Law of the P.R.C. on Regional National Autonomy, Presidential Order No. 13, arts. 6, Id. arts 8–9. 19 (1984) (subject to the approval of the Standing Committee of the NPC). 60. Xianfa [Constitution], arts. 62(4)–(8), 63 (2004). 90. Xianfa [Constitution], arts. 31, 62(13) (2004). 61. Id. arts. 62(10)–(11), (14). 91. Decision of the National People’s Congress on the Establishment of the Hong Kong 62. Id. art. 57; Rules of Procedure for the Standing Committee of the NPC of the Special Administrative Region, Presidential Order No. 26 (1990), http://www.info.gov. P.R.C., Presidential Order No. 60, art. 3 (1987). hk/basic_law/fulltext/content0214.htm; Decision of the National People’s Congress on 63. Xianfa [Constitution], arts. 62(5), 65 (2004). Members of the Standing the Establishment of the Macao Special Administrative Region of the P.R.C., arts. 1–2 Committee serve for five year terms, except for the chairperson and vice chairpersons (1993), http://www.macaudata.com/Macau/jus/jus/e15.html. who may serve no more than two consecutive two year terms. Id. art. 66. The present 92. Ministry of Justice, Government of the P.R.C., Basic System of the State ¶ 7 NPC Standing Committee is composed of a chairperson, 15 vice chairpersons, a (2004), http://www.legalinfo.gov.cn/english/LegalKnowledge/LegalKnowledge1.htm secretary-general and 162 members. See China Internet Information Network, (last visited June 27, 2005). Who’s Who in the Leadership: Leaders of the NPC, http://www.china.org.cn/english/ 93. Decision of the National People’s Congress on the Basic Law of the Hong Kong features/leadership/87697.htm (last visited June 10, 2005). Special Administrative Region, Presidential Order No. 26 (1990), http://www.info.gov. 64. Xianfa [Constitution], art. 68 (2004). hk/basic_law/fulltext/content0213.htm; Decision of the National People’s Congress on 65. Id. arts. 67(1)–(2), (4). Interpretation of national laws may involve clarifying the the Basic Law of the Macao Special Administrative Region (1993). The Basic Law is the specific meaning of a provision or its application upon a new situation arising after the equivalent of a constitution. law’s enactment. Legislation Law of the P.R.C., Presidential Order No. 31, art. 42 (2000). 94. Decision of the National People’s Congress on the Basic Law of the Hong Kong 66. Xianfa [Constitution], arts. 67(6), (8) (2004). Special Administrative Region, Presidential Order No. 26 (1990), http://www.info.gov. 67. Id. arts. 67(4), (11)–(12); Legislation law of the P.R.C., Presidential Order No. 31, art. hk/basic_law/fulltext/content0213.htm; Decision of the National People’s Congress on 42 (2004) (positions include vice-presidents and judges of the SPC, deputy procurators- the Basic Law of the Macao Special Administrative Region (1993). general and procurators of the SPP). 95. State Council, Government of the P.R.C., Circular Concerning the 68. Xianfa [Constitution], arts. 67(3), (5), (9)–(10), (18), (20) (2004). Authorization of the People’s Governments of the Provinces, Autonomous 69. Id. art. 30(1); The establishment of provinces, municipalities and autonomous regions Regions, Municipalities Directly under the Central Government, Special is decided by the NPC. Id. art. 62(12). Economic Zones, and Municipalities Separately Listed on the State Plan to 70. See Central Intelligence Agency (CIA), supra note 1; U.S. Department of State, Examine and Approve Applications for the Establishment of Enterprises With supra note 2. Municipalities are heavily populated urban centers such as Beijing and Foreign Capital (1988), http://www.bjfao.gov.cn/newsite/english/law/003C/078.asp Shanghai. (translation by the Beijing Foreign Affairs Office). 71. Xianfa [Constitution], art. 30 (2004). Establishment and geographical divisions 96. Id. (Zones located in Shenzhen, Zhuhai, Shantou in Guangdong province, Xiamen of towns and townships are decided by the people’s governments of provinces and in Fujian province, and Hainan province); State Council, Government of the P.R.C., municipalities. Id. art. 107. Circular Concerning the Approval of the National Development Zones for 72. Id. arts. 30, 95. New and High Technology Industries and the Relevant Policies and Provisions 73. Id. art. 3. (1991), http://www.bjfao.gov.cn/newsite/english/law/003C/077.asp; State Council, 74. Id. art. 110; Organic Law of the Local People’s Congresses and Local Governments of Government of the P.R.C., Circular Concerning the Expansion of the Scope the P.R.C., Presidential Order No. 37, arts. 54–55 (2004). of the Coastal Economic Open Zones (1988), http://www.bjfao.gov.cn/newsite/ 75. Xianfa [Constitution], arts. 98, 105 (2004); Organic Law of the Local People’s english/law/003C/081.asp (translation by P.R.C. government’s Beijing Foreign Affairs Congresses and Local Governments of the P.R.C., Presidential Order No. 37, arts. 8(5), Office); Ministry of Commerce, Economic and Technological Development Area, 9(7), 58 (2004). http://english.mofcom.gov.cn/staticpage/bda.shtml (last visited Mar. 9, 2005). See also 76. Organic Law of the Local People’s Congresses and Local Governments of the P.R.C., China Association of Development Zones, National Development Zone Profiles, Presidential Order No. 37, art. 59(1) (1995) (including the people’s congress at the http://www.cadz.org.cn/en/ (last visited Mar. 14, 2005). corresponding division and the people’s government or state administrative organ at the 97. See Brian A. Wong & Satyananda J. Gabriel, The Influence of Economic Liberalization on higher level). Id. Urban Health Care Access in the People’s Republic of China (1998), http://www.mtholyoke. 77. Xianfa [Constitution], art. 107 (2004); Organic Law for Local People’s Congresses edu/courses/sgabriel/health.htm (last visited Aug. 31, 2005) (facilitated by economic and Local Governments of the P.R.C., Presidential Order No. 37, arts. 59(1), (4), (6)–(9) growth and increased availability of private health-care facilities). (2004). 98. Xianfa [Constitution], arts. 123–135 (2004); Law of the P.R.C. on the 78. Xianfa [Constitution], art. 111 (2004); Organic Law of Urban Resident Organization of People’s Courts, Presidential Order No. 5, art. 2 (1983). See also Central Committees, Presidential Order No. 21, art. 8 (1989) (effective Jan. 1, 1990); Organic Law Intelligence Agency (CIA), supra note 1; Library of Congress, Country Studies: of the Villagers Committees of the P.R.C. (For Trial Implementation), Presidential Order China, supra note 2, ch. 13, Court Structure and Process. Special people’s courts include No. 59, art. 2 (1988). military courts at various levels (grassroots, great military region or service and arms, and 79. Xianfa [Constitution], art. 111 (2004); Organic Law of Urban Resident the PLA), maritime courts and railway transportation courts. Xianfa [Constitution], Committees, Presidential Order No. 21, art. 8 (1989) (effective Jan. 1, 1990); Organic Law art. 124 (2004). of the Villagers Committees of the P.R.C. (For Trial Implementation), Presidential Order 99. Xianfa [Constitution], art. 127 (2004) (“…without interference by government No. 59, art. 9 (1988). agencies, public organizations or individuals”); Law of the P.R.C. on the Organization 80. Xianfa [Constitution], art. 111 (2004); Organic Law of Urban Resident of People’s Courts, Presidential Order No. 5, art. 4 (1983) (“…shall not be subject to Committees, Presidential Order No. 21, arts. 3(1)–(6), 13 (1989) (effective Jan. 1, 1990); interference by any administrative organ, public organization or individual”). Organic Law of the Villagers Committees of the P.R.C. (For Trial Implementation), 100. Xianfa [Constitution], art. 128 (2004); Law of the P.R.C. on the Organization of Presidential Order No. 59, arts. 4–5 (1988). People’s Courts, Presidential Order No. 5, art. 17 (1983). 81. Library of Congress, Country Studies: China, supra note 2, ch. 10, The Cadre 101. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. 5, System. art. 3 (1983). 82. Civil Servant Law of the P.R.C. (2005) (effective Jan. 1, 2006); Library of Congress, 102. Xianfa [Constitution], art. 127 (2004); Ministry of Justice, Government of Country Studies: China, supra note 2, ch. 10, The Cadre System (guidelines may also the P.R.C., The Trial System, ch. 3 (2004), http://www.legalinfo.gov.cn/english/ be issued by bureaus of personnel in various ministries, commissions and offices under StateOrgans/stateorgans4.htm (last visited Mar. 11, 2005) [hereinafter Ministry of the State Council and personnel departments in various local government organs). Justice, The Trial System]. 83. People’s congresses in provinces, municipalities and autonomous regions must also 103. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. have Standing Committees. Xianfa [Constitution], art. 95 (2004); Organic Law of 5, art. 31 (1983). All people’s courts (higher, intermediate and basic) share the same the Local People’s Congresses and Local Governments of the P.R.C., Presidential Order divisional structure. Id. arts. 19, 24, 27. No. 37, arts. 1–2 (2004). 104. The NPC also has the authority to remove the SPC president. SPC Presidents are 84. Xianfa [Constitution], art. 97 (2004) (e.g. provincial people’s congresses are elected elected for five year terms and limited to a maximum of two consecutive terms. Xianfa by prefectural, county, district or city’s people’s congresses, county people’s congresses [Constitution], arts. 62(7), 63(4), 124 (2004). Judges must fulfill the following criteria: are elected by people’s congresses of towns and townships); Organic Law of the Local be citizens of the P.R.C.; be at least 23 years of age; support the Constitution; be in People’s Congresses and Local Governments of the P.R.C., Presidential Order No. 37, art. good political, professional and moral standing, and in good health; possess a JD or post- 5 (2004). bachelor degree and practical experience. Judges Law of the P.R.C., arts. 9(1)–(6) (1995). 85. Law of the P.R.C. on Regional National Autonomy, Presidential Order No. 13, arts. 105. Other members include the vice-presidents, chief justices, associate chief justices 2, 12, 14 (1984). of divisions, and judges. Law of the P.R.C. on the Organization of People’s Courts, 86. Id. arts. 112–113. Other nationalities inhabiting the area are also entitled to appropriate Presidential Order No. 5, arts. 31, 35 (1983); Xianfa [Constitution], art. 67(11) (2004). representation in local government. Id. 106. Xianfa [Constitution], art. 127 (2004); Law of the P.R.C. on the Organization of 87. Id. art. 115. People’s Courts, Presidential Order No. 5, arts. 14, 30, 32(2) (1983). PAGE 66 WOMEN OF THE WORLD:

107. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. 5, 139. Minban Feiqiye Danwei Dengji Zhanxing Tiaoli [Provisional Regulations for art. 32(1) (1983); Criminal Procedure Law of the P.R.C., art. 22 (1996) (amended 2005). the Registration and Management of Non-Governmental and Non-Commercial 108. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. Enterprises], State Council Order No. 251, art. 2 (1998); Shiye Danwei Dengji Guanli 5, art. 32(1) (1983); Civil Procedure Law of the P.R.C., Presidential Order No. 44, art. 21 Zhanxing Tiaoli [Regulations on Registration and Management of Non-Commercial (1991). Institutions], State Council Order No. 252, art. 2 (1998); Jijin Guanli Tiaoli [Regulations 109. 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State Council Order No. 252, art. 3 (1998). Some NGOs have worked around these laws 114. Id. arts. 2, 18, 26. Basic people’s courts are also known as Primary People’s Courts by registering with the Bureau of Industry and Commerce as enterprises. To Serve the or Grassroots People’s Courts. See Criminal Procedure Law of the P.R.C., art. 19 (1996) People, Roundtable before the Congressional-Executive Commission on China, 108th Cong. (amended 2005); Ministry of Justice, The Trial System, supra note 102, ch. 2. Sess. 1 40 (Mar. 24, 2003) (prepared statement of Nancy Yuan, Vice President, The Asia 115. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. 5, Foundation). arts. 35–37 (1983) (the standing committee of the corresponding people’s congress, upon 141. Shehui Tuanti Dengji Guanli Tiaoli [Regulations on Registration and Management nominations by the president of the court appoints the court’s vice-presidents, members of Social Organizations], State Council Order No. 250, art. 5 (1998); Minban Feiqiye of the judicial committee, chief judges, associate chief judges and judges); Ministry of Danwei Dengji Zhanxing Tiaoli [Provisional Regulations for the Registration and Justice, The Trial System, supra note 102, ch. 3, § 2 (primary judges and associate judges Management of Non-Governmental and Non-Commercial Enterprises], State Council selected through open exams). Order No. 251, art. 4 (1998); Jijin Guanli Tiaoli [Regulations for the Management of 116. Civil Procedure Law of the P.R.C., Presidential Order No. 44, arts. 18, 19(2), 20 Foundations], State Council Order No. 400, art. 4 (2004). (1991). Territorial jurisdiction is determined by the habitual residence of the defendant 142. To Serve the People, supra note 140, 33 n.15, 33–35 (prepared statement of Qiusha (respondent), the plaintiff, or the location where the crime took place. Id. arts. 22–35. Ma, assistant professor of East Asian Studies, Oberlin College) (referring to link between 117. Administrative Procedure Law of the P.R.C., Presidential Order No. 16, arts. 14(3), 15 Chinese government and NGOs). (1989) (effective Oct. 1, 1990). 143. Priscilla Jiao, New China Gets Charitable, Sina (China), Mar. 9, 2005. 118. Criminal Procedure Law of the P.R.C., arts. 20, 22 (1996) (amended 2005). 144. Ministry of Civil Affairs, Government of the P.R.C., Minzhengbu 119. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. 5, Guanyu Dui Bufen Tuanti Mianyu Shetuan Dengji Youguan Wenti de Tongzhi arts. 25(3), 28(4) (1983). [Concerning the Question of Social Organizations Exempted from Registration], No. 120. Criminal Procedure Law of the P.R.C., art. 19 (1996) (amended 2005); Civil 256, art. 1 (2000), http://www.chinanpo.gov.cn/web/showBulltetin.do?Id=16069&d Procedure Law of the P.R.C., Presidential Order No. 44, art. 18 (1991); Administrative ictionId=1202 (last visited Mar. 18, 2005); See To Serve the People, supra note 140, 33–35 Procedure Law of the P.R.C., Presidential Order No. 16, art. 13 (1989) (effective Oct. 1, (prepared statement of Qiusha Ma, assistant professor of East Asian Studies, Oberlin 1990). College). 121. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. 145. To Serve the People, supra note 140, 33 n.15 (prepared statement of Qiusha Ma, 5, arts. 20, 22(2) (1983). People’s tribunals are considered a component of basic people’s assistant professor of East Asian Studies, Oberlin College). courts and its judgments and orders have the same authority as those issued by basic 146. All-China Youth Federation (ACYF), China Youth Policy and Youth Work, ¶ people’s courts. Id. 6, http://www.acyf.org.cn/e_doc/policy/02.htm (last visited March 17, 2005). 122. Id. art. 11. 147. All-China Women’s Federation (ACWF), Brochure (2003), http://www. 123. Id. art. 14. Presidents of people’s courts who find legal errors in judgments of their women.org.cn/english/english/newsletter/ACWF%20brochure.htm (last visited Mar. court must submit the case to the judicial committee for disposal. If the SPP or a people’s 18, 2005). procuratorate finds legal errors in the decision of a subordinate court, it may lodge a 148. Id. protest with the judicial committee. Id. 149. Chen Li Ping, Funufa Xiuzhengan Songshengao Yi Baisong Guowuyuan, Mingque 124. Id. art. 11 (members are first nominated by the president of the relevant court). Guiding Jinzhi Xingsaorao [Amended Draft of Women’s Law Submitted to State Council, Clear 125. 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CEDAW/C/ Open Trial System” enacted by the SPC on Mar. 8, 1999) [hereinafter Committee Against CHN/3-4 (1997), http://www.un.org/womenwatch/daw/cedaw/cedaw20/china.htm Torture, Third periodic reports of States parties: China]. [hereinafter CEDAW Committee, Third and fourth periodic reports of State parties: China]. 128. Law of the P.R.C. on the Organization of People’s Courts, Presidential Order No. 5, 151. Id. pt. I, para. 12. art. 7 (1983). 152. The sponsor is responsible for investigating, monitoring and supervising the 129. Civil Procedure Law of the P.R.C., Presidential Order No. 44, art. 66 (1991). work of its NGOs. Shehui Tuanti Dengji Guanli Tiaoli [Regulations on Registration 130. Xianfa [Constitution], art. 111 (2004) (“The residents’ and villagers’ committees and Management of Social Organizations], State Council Order No. 250, arts. 6, 9 establish committees for people’s mediation… [to] mediate civil disputes…”). (1998); Minban Feiqiye Danwei Dengji Zhanxing Tiaoli [Provisional Regulations 131. Mediation practices are outlined in the Law of Succession, Marriage Law, and Labor for the Registration and Management of Non-Governmental and Non-Commercial Law. See Law of Succession of the P.R.C., Presidential Order No. 24, art. 15 (1985); Enterprises], State Council Order No. 251, arts. 3, 8(I), 9(II) (1998). Marriage Law of the P.R.C., art. 25 (2001); Labour Law of the P.R.C., Presidential Order 153. To Serve the People, supra note 140, 30 (prepared statement of Qiusha Ma, assistant No. 28, arts. 77, 79, 80 (1994) (effective Jan. 1, 1995). professor of East Asian Studies, Oberlin College) (referring to data from National Bureau 132. Renmin Tiaojie Weiyuanhui Zuzhi Tiaoli [Regulations on the Organization of of Statistics of the P.R.C., Civil Affairs Statistical Yearbook 2001). People’s Mediation Committees], State Council Order of May 5, 1989, art. 6 (1989). See 154. Xianfa [Constitution], pmbl. ¶ 12 (2004). also Ministry of Justice, Government of the P.R.C., Survey on System of People’s 155. Id. art. 5 (amended by the Ninth NPC on March 15, 1999). Mediation, ch. V, § III ¶ 4 (2004), http://www.legalinfo.gov.cn/english/LegalService/ 156. Id. arts. 4, 33. legalservice3.htm (last visited Mar. 11, 2005) [hereinafter Ministry of Justice, Survey 157. Id. arts. 35–36, 49. on System of People’s Mediation]. 158. Id. arts. 37–38 (arrest requires a court decision or prosecutor’s approval). 133. Organic Law of Urban Resident Committees, Presidential Order No. 21, art. 13 159. Id. art. 42. (1989) (effective Jan. 1, 1990); Ministry of Justice, Survey on System of People’s 160. Id. art. 33 (amended by the Tenth NPC on March 14, 2004). Mediation, supra note 132, ch. V, § IV ¶ 2. 161. Id. arts. 8, 11, 14, 15, 45. 134. National Bureau of Statistics of China, Government of the P.R.C., China 162. 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Supreme People’s Procuratorate], Zuigao Renmin Jianchayuan Zhuyao Zhiye [Main open.aspx?n_id=9283 (translation by the Center for Reproductive Rights) [hereinafter Functions], art. 12 (May 16, 2005), http://www.spp.gov.cn/site2005/scripts/pageRead. National Plan for Health Education and Promotion (2005-2010)]. asp?d_id=200105161438415660. 181. National People’s Congress (NPC), Government of the P.R.C., Zhongguo 168. Novexcn.com, Cases and Court Decisions in the P.R.C. (2000), http://www. Funu Fazhan Wangyao (2001-2010 Nian) [National Plan for the Development novexcn.com/cases_court_decisions_main.html (last visited Mar. 19, 2005). of Chinese Women (2001-2010)] (2000), http://www.moh.gov.cn/public/open. 169. Xianfa [Constitution], arts. 81, 67(14) (2004). aspx?n_id=2720 (translation by the Center for Reproductive Rights) [hereinafter 170. Convention on the Elimination of All Forms of Discrimination against Women, National Plan for the Development of Chinese Women (2001-2010)]; National adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, People’s Congress (NPC), Government of the P.R.C., Zhongguo Ertong Fazhan U.N. Doc. A/34/46 (1979) (entered into force Sept. 3, 1981) (ratified by China Dec. 3, 1981); Wangyao (2001-2010 Nian) [National Plan for the Development of Chinese Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, annex, Children (2001-2010)] (2001), http://www.moh.gov.cn/public/open.aspx?n_id=2734 U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc. A/44/49 (1989), reprinted in 28 (translation by the Center for Reproductive Rights) [hereinafter National Plan for I.L.M. 1448 (entered into force Sept. 2, 1990) (ratified by China Apr. 1, 1992); International the Development of Chinese Children (2001-2010)]. Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. 182. National Plan for Health Education and Promotion (2005-2010), supra note GAOR, Supp. No. 16, at 49, U.N. Doc. A/6316 (1966), 999 U.N.T.S 3 (entered into force 180, arts. 3(3), (6). Jan. 3, 1976) (ratified by China June 27, 2001); Convention Against Torture and Other 183. Xianfa [Constitution], art. 21 (2004). Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, G.A. 184. The Western Region is composed of the following: Chongqing Municipality, Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984), Guizhou Province, Sichuan Province, Yunnan Province, the Tibet Autonomous Region, 1465 U.N.T.S. 85 (entered into force June 26, 1987) (ratified with reservations and declarations by Shaanxi Province, Gansu Province, the Ningxia Hui Autonomous Region, Qinghai China Nov. 3, 1988); International Convention on the Elimination of All Forms of Racial Province, the Xinjiang Uygur Autonomous Region, the Inner Mongolia Autonomous Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) (accession with reservation and Region, the Guangxi Zhuang Autonomous Region, Xianxi Tujia-Miao Autonomous declaration by China Jan. 28, 1982); Optional Protocol to the Convention on the Rights of Prefecture of Hunan Province, the Enshi Tujia-Miao Autonomous Prefecture of Hubei the Child on the sale of children, child prostitution and child pornography, adopted May Province, and the Yanbian Korean Autonomous Prefecture of Jilin Province. State 25, 2000, G.A. Res. 54/263, U.N. GAOR, 54th Sess., U.N. Doc. A/RES/54/263 (2000) Council, Government of the P.R.C., Suggestions on the Implementation (entered into force Jan. 18, 2002) (ratified by China Jan. 3, 2003). of Policies and Measures Pertaining to the Development of the Western 171. Committee Against Torture, Third periodic reports of States parties: China, supra Region, arts. 1, 7 (2001), http://www.chinawest.gov.cn/english/asp/showinfo. note 127; Initial reports submitted by State parties under articles 16 and 17 of the Covenant: asp?name=200204180012 [hereinafter State Council, Policies for the Development China, Committee on Economic, Social and Cultural Rights, U.N. Doc. E/1990/5/ of the Western Region]. Add.59 (2004), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.1990.5.Add.59. 185. Office of the Leading Group for Western Region Development of the En?Opendocument [hereinafter Committee on Economic, Social and Cultural Rights, State Council, Government of the P.R.C., Overall Plan of Western Region Initial report of State parties: China]; CEDAW Committee, Third and fourth periodic reports of Development During the Tenth Five-Year Plan Period, art. 1(1)(7) (2002), http:// State parties: China, supra note 150. www.chinawest.gov.cn/English/asp/showinfo.asp?name=200207100002; State 172. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Council, Policies for the Development of the Western Region, supra note 184, art. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into 52. force Mar. 23, 1976) (signed with declaration by China Oct. 5, 1998, not ratified by China as of 186. Health System Faces up to Great Challenges, Xinhua News Agency (China), Jan. 10, June 8, 2005); Optional Protocol to the Convention on the Rights of the Child on the 2005, http://news.xinhuanet.com/English/2005-01/10/content_2441341.htm. involvement of children in armed conflict, adopted May 25, 2000, G.A. Res. 54/263, U.N. 187. China Statistical Yearbook 2003, supra note 134, ch. 2-1, at 23–24. GAOR, 54th Sess., U.N. Doc. A/RES/54/263 (entered into force Feb. 12, 2002) (signed by 188. Figures extrapolated from total population, number of medical and technical China Mar. 15, 2001, not ratifie d by China as of June 8, 2005). personnel in Health Institutions (427 per 10,000 persons), number of doctors (184.4 per 173. Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, 10,000 persons) and number of nurses (124.7 per 10,000 persons). China Statistical China, Sept. 4-15, 1995, U.N. Doc. A/CONF.177/20 (1995); Programme of Action of the Yearbook 2003, supra note 134, ch. 21-34, at 805. International Conference on Population and Development, Cairo, Egypt, Sept. 5-13, 1994, 189. Ministry of Health, Year 2005 Health Work Essential Points, supra note 179, U.N. Doc. A/CONF.171/13/Rev.1 (1995); Key Actions for the Further Implementation of art. 3. the Programme of Action of the International Conference on Population and Development, U.N. 190. Id. arts. 1, 9. GAOR, 21st Special Sess., New York, United States, June 30-July 2, 1999, U.N. Doc. 191. Yiliao Jigou Guanli Tiaoli [Regulations on Management of Medical Service A/S-21/5/Add.1 (1999); Further Actions and Initiatives to Implement the Beijing Declaration and Organizations], Ministry of Health Order No. 35 (1994); Yiliao Jigou Guanli Tiaoli the Platform for Action, U.N. GAOR, 23rd Special Sess., New York, United States, June 5-9, Shishi Xizi [Rules for Implementation of the Regulations on Management of Medical 2000, U.N. Doc. A/Res/S-23 (2000). Service Organizations], Ministry of Health Order No. 35 (1994) (translation by the 174. Millennium Declaration, Millennium Assembly, New York, United States, Sept. 6-8, 2000, Center for Reproductive Rights). U.N. GAOR, 55th Sess., U.N. Doc. A/Res/55/2 (2000); United nations Country 192. Yiliao Jigou Guanli Tiaoli Shishi Xizi [Rules for Implementation of the Regulations Team in China, Millennium Development Goals: China’s Progress (2004) on Management of Medical Service Organizations], Ministry of Health Order No. 35, [hereinafter Millennium Development Goals: China’s Progress]. art. 3(1)–(12) (1994) (translation by the Center for Reproductive Rights). 175. Xianfa [Constitution], art. 21 (2004). 193. Yiliao Jigou Guanli Tiaoli [Regulations on Management of Medical Service 176. General Principles of the Civil Law of the P.R.C., Presidential Order No. 37, art. 98 Organizations], Ministry of Health Order No. 35, arts. 8–9, 15, 22 (1994) (annual (1986) (effective Jan. 1, 1987) [hereinafter Civil Law of the P.R.C.]. reassessments or if the facility has over 100 beds, reassessments every three years) 177. Communist Party of China Central Committee & State Council of the (translation by the Center for Reproductive Rights). P.R.C., Decision Concerning Public Health Reform and Development (1997), 194. Ministry of Health, Government of the P.R.C., Guanyu Yunxu Geti Kaiye http://www.bjfao.gov.cn/newsite/english/law/004D/003.asp. Xingye Wenti De Qingshi Baogou [Report Concerning Permission for Private 178. Law on the Prevention and Treatment of Infectious Diseases (1989), amended by Medical Practices], secs. 1–3 (1980), http://www.law-lib.com/law/law_view. Presidential Order No. 17 (2004) (translation by Center for Reproductive Rights). asp?id=44304 (reinstating permission for private medical practices originally granted 179. Ministry of Health, Government of the P.R.C., 2005 Nian Weisheng under 1963’s Yisheng Zhanxing Guanli Banfa [Provisional Measures for Management of Gongzuo Yaodian [Year 2005 Health Work Essential Points], arts. 1–4, 6–11 (2005), Doctors]) (translation by Center for Reproductive Rights). http://www.moh.gov.cn/public/open.aspx?n_id=9376 (referring to “Guanyu Shenhua 195. Regional Office for the Western Pacific, World Health Organization Chengshi Yiliao Fuwu Tizhi Gaige Shidian De Jiaodao Yijian” [Directives Concerning (WHO), Country Health Info Profile 2004: China 54 (2004). Deepening Urban Health-Care Reform]) (translation by the Center for Reproductive 196. China Statistical Yearbook 2003, supra note 134, ch. 8-1, at 281, ch. 21-46, at 812 Rights) [hereinafter Ministry of Health, Year 2005 Health Work Essential Points]. (figures extrapolated by dividing total government expenditure (CNY 793.7 billion) 180. Ministry of Health, Government of the P.R.C., Zhongguo Nongcun and total government public health expenditure (461 million); United Nations Chuji Weisheng Baojian Fazhan Wangyao (2001-2010 Nian) [National Plan Development Programme (UNDP) China, Thematic Areas: Health, http://www. for the Development of Rural Primary Health-Care (2001-2010)] (2002), unchina.org/theme/html/health.shtml (last updated Dec., 2001). http://www.moh.gov.cn/public/open.aspx?n_id=8067 (translation by the Center for 197. China Statistical Yearbook 2003, supra note 134, ch. 8-1, at 281, ch. 21-46, at 812 Reproductive Rights) [hereinafter National Plan for the Development of Rural (figures extrapolated by dividing total government expenditure (CNY 1.89 trillion) and Primary Health-Care (2001-2010)]; Ministry of Health, Government of the total government public health expenditure); Calculations based on exchange rate of P.R.C., Zhongguo Tigao Chusheng Renkou Shzhi, Jianshao Chusheng Quexian 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). See International Monetary Fund, He Canji Xingdong Jihua (2002-2010) [National Action Plan for Raising Representative Exchange Rates for Selected Currencies (June 15, 2005), http:// Quality of Birth Population and Reducing Birth Defects (2002-2010)] (2002), www.imf.org/external/np/fin/rates/rms_rep.cfm. http://www.moh.gov.cn/public/open.aspx?n_id=2731 (translation by the Center for 198. UNDP China, Thematic Areas: Health, supra note 196. Reproductive Rights) [hereinafter National Action Plan for Raising Quality 199. China Medical Association, Health Care System in China, http://www. of Birth Population and Reducing Birth Defects (2002-2010)]; Ministry of chinamed.com.cn/chinamedorg/healthcare.htm (last visited Mar. 24, 2005). Health, Government of the P.R.C., Quanguo Jiankang Jianyu Yu Jiankang 200. Id. Cujin Gongzuo Guihua Wangyao (2005-2010 Nian) [National Plan for Health 201. Information Office of the State Council, Government of the P.R.C., China’s Education and Promotion (2005-2010)] (2005), http://www.moh.gov.cn/public/ Social Security and Its Policy, ch. 3 (2004), http://www.china.org.cn/e- PAGE 68 WOMEN OF THE WORLD:

white/20040907/index.htm (referring to the State Council’s “Decision on Establishing the Staff and Workers in Enterprises, supra note 232, art. 13. a Basic Medical Insurance System for Urban Employees” promulgated on December 14, 237. Pharmaceutical Administration Law of the P.R.C., Presidential Order No. 45, arts. 1998) [hereinafter State Council, China’s Social Security and Its Policy]. 1–3, 35–36 (2000) (amended 2001); Zhonghua Renmin GongheguoYaopin Guanli Fa 202. Id. Shishi Tiaoli [Regulations for the Implementation of the Pharmaceutical Administration 203. Id. Law of the P.R.C.], State Council Order No. 360 (2002) (translation by Center for 204. China Medical Association, supra note 199. Reproductive Rights). 205. State Council, China’s Social Security and Its Policy, supra note 201, ch. 3. 238. Pharmaceutical Administration Law of the P.R.C., Presidential Order No. 45, art. 1 206. Id. (2000) (amended 2001). 207. Id. 239. Id. arts. 7, 24, 23; Measures for the Supervision over and Administration of 208. Id. Pharmaceutical Production, State Food and Drug Administration Order No.16, arts. 8, 209. Id. 51 (2004); Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY 210. Id. (renmenbi). See International Monetary Fund, supra note 197. 211. Office of the World Health Organization Representative in China, World 240. Pharmaceutical Administration Law of the P.R.C., Presidential Order No. 45, art. 31 Health Organization (WHO), Country Cooperation Strategy: WHO China: (2000) (amended 2001). Strategic Priorities for 2004-2008, at 16 (2004). 241. Id. arts. 29–33; Zhonghua Renmin GongheguoYaopin Guanli Fa Shishi Tiaoli 212. Exec. Bd. of the United Nations Development Programme (UNDP) & of the [Regulations for the Implementation of the Pharmaceutical Administration Law of UN Population Fund (UNFPA), Country Programme Outline for China, para. the P.R.C.], State Council Order No. 360, arts. 29–31 (2002) (translation by Center for 7, U.N. Doc. DP/FPA/CPO/CHN/5 (2002), http://www.unfpa.org/exbrd/2002/ Reproductive Rights). secondsession/dpfpacpochn5.pdf [hereinafter Country Programme Outline for 242. Zhonghua Renmin GongheguoYaopin Guanli Fa Shishi Tiaoli [Regulations for the China]. Implementation of the Pharmaceutical Administration Law of the P.R.C.], State Council 213. Id. para. 2. Order No. 360, art. 15 (2002) (translation by Center for Reproductive Rights). 214. Id. para. 7. 243. Pharmaceutical Administration Law of the P.R.C., Presidential Order No. 45, arts. 19, 215. Id. para. 8. 27 (2000) (amended 2001). 216. Id. para. 11. 244. Zhonghua Renmin Gongheguo Zhiye Yishi Fa [P.R.C. Medical Practitioner Law], 217. China Statistical Yearbook 2003, supra note 134, ch. 21-46, at 812; Calculations arts. 37(10), 42 (1998) (effective May 1, 1999) (translation by Center for Reproductive based on exchange rate of U.S. Dollar (USD) 1 to Chinese Yuan (CNY) (renmenbi) Rights); Zhonghua Renmin Gongheguo Hushi Guanli Banfa [P.R.C. Measures for the 8.2765. See International Monetary Fund, supra note 197. Management of Nurses], Ministry of Health Order No. 31 (1993) (effective Jan. 1, 1994) 218. China Statistical Yearbook 2003, supra note 134, ch. 10-4, at 345, ch. 10-7, at 348 (translation by Center for Reproductive Rights); Law of the P.R.C. on Maternal and (figures for 2002). Infant Health Care, Presidential Order No. 33 (1994) (effective June 1, 1995); Chuantong 219. Id. ch.10-23, at 370, ch. 10-25, at 372 (figures for 2002); Calculations based on Yixueshi Cheng He Queyou Zhuanchang Renyuan Yishi Zige Kaohe Kaoshi Zhanxing exchange rate of U.S. Dollar (USD) 1 to Chinese Yuan (CNY) (renmenbi) 8.2765. See Banfa [Provisional Measures for Administrating Traditional Medical Practitioner and International Monetary Fund, supra note 197. Specialty Medical Practitioner Qualification Exams], Ministry of Health Order No. 220. Health System Faces up to Great Challenges, supra note 186. 6 (1999) (translation by Center for Reproductive Rights); Yiliao Jigou Guanli Tiaoli 221. Id. [Regulations on Management of Medical Service Organizations], Ministry of Health 222. State Council, China’s Social Security and Its Policy, supra note 201, ch. 4 Order No. 35 (1994) (translation by Center for Reproductive Rights); Yiliao Jigou (referring to regulations mandating all enterprises and individual business in industry and Guanli Tiaoli Shishi Xizi [Rules for Implementation of the Regulations on Management commerce to provide work-related injury insurance that pay for medical expenditures, of Medical Service Organizations], Ministry of Health Order No. 35 (1994) (translation subsidies, allowance and nursing fees); Health System Faces up to Great Challenges, supra by Center for Reproductive Rights). note 186. 245. Zhonghua Renmin Gongheguo Zhiye Yishi Fa [P.R.C. Medical Practitioner Law], 223. China Statistical Yearbook 2003, supra note 134, ch. 22-34. art. 1 (1998) (effective May 1, 1999) (translation by Center for Reproductive Rights). 224. UNDP China, Thematic Areas: Health, supra note 196. 246. Id. art. 8. 225. Zhonghua Renmin GongheguoYaopin Guanli Fa Shishi Tiaoli [Regulations for the 247. Id. arts. 9–10. Implementation of the Pharmaceutical Administration Law of the P.R.C.], State Council 248. Id. arts. 13–14. Order No. 360, arts. 48, 55–56 (2002) (translation by the Center for Reproductive 249. Id. art. 21(6). Rights). Certain categories of essential medications are subjected to government-fixed 250. Id. arts. 22(1)–(5). pricing and others to government- guided pricing. Id. art. 48. 251. Ministry of Health, Year 2005 Health Work Essential Points, supra note 179, 226. Id. art. 75 (2002); Price Law of the P.R.C., Presidential Order No. 92, arts. 39–41 art. 5. (1997) (effective May 1, 1998). 252. State Council, Government of the P.R.C., Guowuyuan Guanyu Jinyibu 227. Yiliao Jigou Guanli Tiaoli [Regulations on Management of Medical Service Jiaqiang Shipin Anquan Gongzuo de Jueding [State Council Decision Organizations], Ministry of Health Order No. 35, art. 37 (1994) (translation by the Concerning Further Strengthening Food Safety], Order No. 23 (2004), http:// Center for Reproductive Rights). www.tj.xinhuanet.com/shkj/2004-09/29/content_2957607.htm (translation by Center 228. Id.; Zhonghua Renmin Gongheguo Zhiye Yishi Fa [P.R.C. Medical Practitioner for Reproductive Rights); Ministry of Health, Year 2005 Health Work Essential Law], arts. 37(10), 42 (1998) (effective May 1, 1999) (translation by the Center for Points, supra note 179, art. 6. Reproductive Rights); Price Law of the P.R.C., Presidential Order No. 92, arts. 39–40 253. Ministry of Health, Government of the P.R.C., Zhongguo Huli Shiye (1997) (effective May 1, 1998). Fazhan Jihua Wangyao (2005-2010 Nian) [National Plan for the Development of 229. State Council, China’s Social Security and Its Policy, supra note 201, ch. 5 the Nursing Profession (2005-1010)] (2005) (translation by Center for Reproductive (administered by the organ in charge of social insurance). Rights). 230. Id. 254. Zhonghua Renmin Gongheguo Hushi Guanli Banfa [P.R.C. Measures for the 231. National Plan for the Development of Chinese Women (2001-2010), supra note Management of Nurses], Ministry of Health Order No. 31, art. 1 (1993) (effective Jan. 1, 181, art. 1(1)(3). 1994) (translation by Center for Reproductive Rights). 232. Ministry of Labor and Social Security (MOLSS), Government of the 255. Id. P.R.C., Circular on Issuing the Measures (for Trial Implementation) for 256. Id. art. 3. Maternity Insurance of the Staff and Workers in Enterprises, No. 504, arts. 1, 257. Id. arts. 12–13, 16–17, 19. 5–6 (1994) (translation by International Labour Organization) (maternity subsidies are 258. Chuantong Yixueshi Cheng He Queyou Zhuanchang Renyuan Yishi Zige Kaohe based on a percentage of average month wages) [hereinafter MOLSS, Measures (for Kaoshi Zhanxing Banfa [Provisional Measures for Administrating Traditional Medical Trial Implementation) for Maternity Insurance of the Staff and Workers in Practitioner and Specialty Medical Practitioner Qualification Exams], Ministry of Health Enterprises]; Ministry of Labor and Social Security (MOLSS), Government Order No. 6, art. 3 (1999) (translation by Center for Reproductive Rights). of the P.R.C., Quanyu Jinyibu Jiqiang Shengyu Baoxian Gongzuo De Zhidao 259. Id. art. 6(1)–(4), 17–18. YeYijian [Suggestions Concerning Strengthening Maternity Insurance Work], 260. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, Lao She Ting Fa [MOLSS Notice] No. 14 (2004) (translation by Center for Reproductive art. 32 (1994) (effective June 1, 1995); Muying Baojian Zhuanxiang Jishu Fuwu Xuke Rights) [hereinafter MOLSS, Suggestions Concerning Strengthing Maternity Ji Renyuan Zige Guanli Banfa [Measures for the Management of Maternal and Infant Insurance Work]. Health-Care Specialty Technical Service Permits and Personnel Qualifications], Ministry 233. Labor Law of the P.R.C., Presidential Order No. 28, art. 62 (1994) (effective Jan. 1, of Health Order of Aug. 7, 1995, arts. 2, 4 (1995) (translation by Center for Reproductive 1995). Rights). 234. MOLSS, Measures (for Trial Implementation) for Maternity Insurance of 261. Muying Baojian Yixue Jishu Jianding Guanli Banfa [Measures for the Management the Staff and Workers in Enterprises, supra note 232, art. 1. of Maternal and Infant Health-Care Medical Technology Appraisals], art. 4 (1995) 235. Id. art. 4; MOLSS, Suggestions Concerning Strengthening Maternity (translation by Center for Reproductive Rights). Insurance Work, supra note 232 (employers that are unable to provide both maternity 262. Id. arts. 2, 11, 18. insurance and maternity subsidies may be exempted from the latter). 263. Muying Baojian Zhuanxiang Jishu Fuwu Xuke Ji Renyuan Zige Guanli Banfa 236. MOLSS, Measures (for Trial Implementation) for Maternity Insurance of [Measures for the Management of Maternal and Infant Health-Care Specialty Technical CHINA PAGE 69

Service Permits and Personnel Qualifications], Ministry of Health Order of Aug. 7, 1995, 285. Id. art. 25. arts. 7–8 (1995) (translation by Center for Reproductive Rights). 286. Hunqian Baojian Gongzuo Guifan (Xiuding) Standards for Premarital Health- 264. Muying Baojian Zhuanxiang Jishu Jiben Biaozhun [Basic Standards for Specialty Care Work (Revised), Wei Ji Fu Fa No. 147, sec. 3(3)(3) (2002) (translation by Center for Maternal and Infant Health-Care Technical Services], Ministry of Health Order of Reproductive Rights). Aug. 7, 1995, secs. 1–3 (1995) (translation by Center for Reproductive Rights); Muying 287. Ministry of Health, Government of the P.R.C., Weishengbu Guanyu Yinfa Baojian Zhuanxiang Jishu Fuwu Xuke Ji Renyuan Zige Guanli Banfa [Measures for the Dui Aizibing Bingdu Ganranzhe He Aizibing Bingren Guanli Yijian De Tongzhi Management of Maternal and Infant Health-Care Specialty Technical Service Permits [Notice on the Administration of HIV Positive People and Patients], Wei Ji Kong and Personnel Qualifications], Ministry of Health Order of Aug. 7, 1995, art. 10 (1995) Fa [Department of Infectious Disease Control Notice] No. 164, arts. 1(3), 3(3) (1999) (translation by Center for Reproductive Rights). (translation by Center of Reproductive Rights) [hereinafter on the Administration of 265. Muying Baojian Zhuanxiang Jishu Fuwu Xuke Ji Renyuan Zige Guanli Banfa HIV Positive People and Patients]. [Measures for the Management of Maternal and Infant Health-Care Specialty Technical 288. Wen JiaBao, supra note 48, § 5(1) ¶ 4. Service Permits and Personnel Qualifications], arts. 11–12 (1995) (the exams are 289. Id.; Information Office of the State Council, Government of the P.R.C., formulated by the MOH and administered by the local health departments) (translation Introduction about the System of Social Support for Some Rural Families by Center for Reproductive Rights). Practicing Family Planning (2005), http://www.npfpc.gov.cn/en/en2005-06/ 266. Muying Baojian Zhuanxiang Jishu Jiben Biaozhun [Basic Standards for Specialty enews20050314-2.htm; Pan Guiyu, Speech at the Press Conference on the System of Maternal and Infant Health-Care Technical Services], Ministry of Health Order of Aug. Social Support for Some Rural Families Practicing Family Planning (June 9, 2005) 7, 1995, secs. 1(1)(3), 1(2)(2) (1995) (translation by Center for Reproductive Rights). (transcript available at http://www.npfpc.gov.cn/en/en2005-06/enews20050614.htm) 267. Hunqian Baojian Gongzuo Guifan (Xiuding), [Standards for Premarital Health-Care (Mme. Pan is the Minister of that NPFPC) (program expansion to cover 23 provinces, Work (Revised)], Wei Ji Fu Fa [Department of Maternal and Infant Health-Care Notice] autonomous regions and municipalities, 12 counties in Tibet Autonomous Region, 22 No. 147, sec. 2(1)(2) (2002) (translation by Center for Reproductive Rights). counties in Shandong Province, providing benefits for 1.35 million people). 268. Id. sec. 1(1)(2); Law of the P.R.C. on Maternal and Infant Health Care, Presidential 290. Ministry of Health, Year 2005 Health Work Essential Points, supra note 179, Order No. 33, arts. 7–13 (1994) (effective June 1, 1995); Zhonghua Renmin Gongheguo art. 5. Muying Baojian Fa Shishi Banfa [Implementation Measures for the P.R.C. Law on 291. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. Maternal and Infant Health Care], State Council Order No. 308, arts. 3(2), 9, 14 (2001) 35 (2001) (effective Sept. 1, 2002); Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations (couples “should” go for premarital health exams in regions implementing them) for the Management of Family Planning Technical Services], art. 18 (2001), amended by (translation by Center for Reproductive Rights). State Council Order No. 428 (2004) (translation by Center for Reproductive Rights); 269. Hunqian Baojian Gongzuo Guifan (Xiuding) [Standards for Premarital Health-Care Chanqian Zhenduan Jishu Guanli Banfa [Measures for the Management of Prenatal Work (Revised)], Wei Ji Fu Fa [Department of Maternal and Infant Health-Care Notice] Diagnostic Technology], Ministry of Health Order No. 33, art. 27 (2002) (effective No. 147, sec. 2(1)(1) (2002) (translation by Center for Reproductive Rights). May 1. 2003) (sex-determination may be necessary to detect sex-related genetic disease) 270. Id. sec. 2(2); Muying Baojian Zhuanxiang Jishu Jiben Biaozhun [Basic Standards (translation by Center for Reproductive Rights); Guanyu Jinzhi Fei Yixue Xuyao De for Specialty Maternal and Infant Health-Care Technical Services], Ministry of Health Taier Xingbie Jianding He Xuanze Xingbie De Rengong Zhongzhi Renshen De Order of Aug. 7, 1995, secs. 1(1), 2(1) (1995) (translation by Center for Reproductive Guiding [Regulation Prohibiting Non-Medically Necessary Sex-Determinations and Rights). Sex-Selective Abortions], art. 6 (2002) (effective Jan. 1, 2003) (medically necessary sex- 271. Chanqian Zhenduan Jishu Guanli Banfa [Measures for the Management of Prenatal determinations may only be conducted upon verification of medical condition by local Diagnostic Technology], Ministry of Health Order No. 33, art. 2 (2002) (effective May 1. family planning department and permission from provincial population and family 2003) (translation by Center for Reproductive Rights). planning department) (translation by Center for Reproductive Rights). 272. Id. art. 8; Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order 292. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. No. 33, art. 33 (1994) (effective June 1, 1995). 35 (2001) (effective Sept. 1, 2002); Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations 273. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, for the Management of Family Planning Technical Services], art. 18 (2001), amended by art. 33 (1994) (effective June 1, 1995); Muying Baojian Zhuanxiang Jishu Jiben Biaozhun State Council Order No. 428 (2004) (translation by Center for Reproductive Rights); [Basic Standards for Specialty Maternal and Infant Health-Care Technical Services], Chanqian Zhenduan Jishu Guanli Banfa [Measures for the Management of Prenatal Ministry of Health Order of Aug. 7, 1995, secs. 2(2)(2) (1995) (translation by Center for Diagnostic Technology], Ministry of Health Order No. 33, art. 27 (2002) (effective May Reproductive Rights). 1, 2003) (translation by Center for Reproductive Rights). 274. Chanqian Zhenduan Jishu Guanli Banfa [Measures for the Management of Prenatal 293. Hospitals Provide Assisted Reproductive Technology Services, Xinhua News Agency Diagnostic Technology], Ministry of Health Order No. 33, art. 9 (2002) (effective May 1. (China), Apr. 2, 2003, http://www.china.org.cn/english/China/60817.htm (referring to 2003) (translation by Center for Reproductive Rights). figures from Ministry of Health). 275. Muying Baojian Zhuanxiang Jishu Jiben Biaozhun [Basic Standards for Specialty 294. Renlei Fuzhu Shengzhi Jishu Guifan [Standards for Assisted Reproductive Maternal and Infant Health-Care Technical Services], Ministry of Health Order of Technologies], sec. 1 (2001), amended by Ministry of Health Order No. 176 (2003) (also Aug. 7, 1995, sec. 3(1) (1995) (must have finished at least elementary school) (translation intracytoplasmic sperm injection, preimplantation genetic diagnosis and donation of by Center for Reproductive Rights); Jiating Jiesheng Chenggui (Shixing) [Rules for sperm or embryos) (translation by Center for Reproductive Rights); Renlei Fuzhu Home Deliveries (Provisional)], Ministry of Health Order of Feb. 10, 1989, sec. 2(1) (1989) Shengzhi Jishu Guanli Banfa [Measures for the Management of Assisted Reproductive (translation by Center for Reproductive Rights). Technologies], State Council Order No.14, art. 1 (2001) (amended 2003) (translation by 276. Muying Baojian Zhuanxiang Jishu Jiben Biaozhun [Basic Standards for Specialty Center for Reproductive Rights). Maternal and Infant Health-Care Technical Services], Ministry of Health Order of Aug. 295. Ministry of Health, Government of the P.R.C., Weishengbu Guanyu 7, 1995, secs. 3(2)–(5) (1995) (translation by Center for Reproductive Rights); Jiating Pizhun De Keyi Fazhan Renlei Fuzhu Shengzhi Jishu He Shebei Renlei Jingziku Jiesheng Chenggui (Shixing) [Rules for Home Deliveries (Provisional)], Ministry of De Jigou Mingdan [List of Organizations approved for development of Health Order of Feb. 10, 1989, sec. 2(3) (1989) (translation by Center for Reproductive Assisted Reproductive Technologies or Establishment of Sperm Banks] (2005), Rights). http://www.moh.gov.cn/public/open.aspx?n_id=10019 (translation by Center for 277. Muying Baojian Zhuanxiang Jishu Jiben Biaozhun [Basic Standards for Specialty Reproductive Rights). Maternal and Infant Health-Care Technical Services], Ministry of Health Order of Aug. 296. Renlei Fuzhu Shengzhi Jishu Guifan [Standards for Assisted Reproductive 7, 1995, sec. 3(6) (1995) (translation by Center for Reproductive Rights). Technology] (2001), amended by Ministry of Health Order No. 176 (2003) (translation 278. Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of by Center for Reproductive Rights); Shishi Renlei Fuzhu Shengzhi Jishu De Lunli Family Planning Technical Services], arts. 21–23, 27 (2001), amended by State Council Yuanze [Ethical Principles of Assisted Reproductive Technology] (2001), amended by Order No. 428 (2004) (translation by Center for Reproductive Rights). Ministry of Health Order No. 176 (2003) (translation by Center for Reproductive 279. Criminal Law of the P.R.C., art. 335 (1997) amended by Presidential Order No. 32 Rights); Renlei Fuzhu Shengzhi Jishu Guanli Banfa [Measures for the Management of (2005) (criminal detention lasts up to six months and is administered by the local public Assisted Reproduction Technology], State Council Order No.14, art. 3 (2001), amended security organ). by Ministry of Health Order No. 176 (2003) (translation by Center for Reproductive 280. Id. art. 336. Rights). 281. Ministry of Health, Government of the P.R.C., Yiyuan Guanli 297. Renlei Fuzhu Shengzhi Jishu Guifan [Standards for Assisted Reproductive Pingjia Zhinan (Shixing) [Hospital Administration Appraisal Guide (Trial Technology], arts. 1(3)(1)(1)–(2) (2001), 2(3)(1)(1)–(2), amended by Ministry of Health Implementation)], Wei Yi Fa [Department of Infectious Disease Control and Prevention Order No. 176 (2003) (conditions eligible to receive artificial, intravaginal, intracervical, Notice] No. 104, secs. IV(1)(1)–(6) (2005), http://www.law-lib.com/law/law_view. intrauterine or intratubal insemination and conditions eligible for intracytoplasmic asp?id=91078 (translation by Center for Reproductive Rights). sperm injection, preimplantation genetic diagnosis, receive sperm/embryo donation) 282. Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of (translation by Center for Reproductive Rights). Family Planning Technical Services], arts. 14, 18 (2001), amended by State Council Order 298. Shishi Renlei Fuzhu Shengzhi Jishu De Lunli Yuanze [Ethical Principles of Assisted No. 428 (2004) (translation by Center for Reproductive Rights). Reproductive Technology], art. 4 (2001), amended by Ministry of Health Order No. 176 283. Chanqian Zhenduan Jishu Guanli Banfa [Measures for the Management of Prenatal (2003) (translation by Center for Reproductive Rights). Diagnostic Technology], Ministry of Health Order No. 33, arts. 20, 23–25 (2002) 299. Renlei Fuzhu Shengzhi Jishu Guanli Banfa [Measures for the Management of (effective May 1, 2003) (translation by Center for Reproductive Rights). Assisted Reproduction Technology], State Council Order No.14, art. 22(2) (2001), 284. Id. art. 24. amended by Ministry of Health Order No. 176 (2003) (punishable by a maximum fine of PAGE 70 WOMEN OF THE WORLD:

CNY 3000, administrative or criminal penalties) (translation by Center for Reproductive for Reproductive Rights). Rights); Shishi Renlei Fuzhu Shengzhi Jishu De Lunli Yuanze [Ethical Principles of 312. Id.; Hunyin Dengji Tiaoli [Regulation on Marriage Registration], State Council Assisted Reproductive Technology], art. 5 (2001), amended by Ministry of Health Order Order No. 387 (2003) (translation by Center for Reproductive Rights); See National No. 176 (2003) (translation by Center for Reproductive Rights); Renlei Fuzhu Shengzhi Action Plan for Raising Quality of Birth Population and Reducing Jishu Guifan [Standards for Assisted Reproductive Technology], sec. 3(7) (2001), amended Birth Defects (2002-2010), supra note 180, § 4(3)(1)(1). National Plan for the by Ministry of Health Order No. 176 (2003) (translation by Center for Reproductive Development of Chinese Children (2001-2010)], supra note 180, § 1(1)(1) (goals of the Rights). Plan include premarital health exams for 80% of premarital couples in urban areas, and 300. Shishi Renlei Fuzhu Shengzhi Jishu De Lunli Yuanze [Ethical Principles of Assisted 50% in rural areas). Reproductive Technology], art. 5 (2001), amended by Ministry of Health Order No. 176 313. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, (2003) (translation by Center for Reproductive Rights); Renlei Fuzhu Shengzhi Jishu arts. 9–10 (1994) (effective June 1, 1995). Guanli Banfa [Measures for the Management of Assisted Reproduction Technology], 314. Hunqian Baojian Gongzuo Guifan (Xiuding) [Standards for Premarital Health-Care State Council Order No. 14, art. 22(1) (2001) (amended 2003) (translation by Center for Work (Revised)], Wei Ji Fu Fa [MOH Department of Maternal and Infant Health-Care Reproductive Rights). Notice] No. 147, sec. 1(1)(4)(1)–(2) (2002) (translation by Center for Reproductive 301. Shishi Renlei Fuzhu Shengzhi Jishu De Lunli Yuanze [Ethical Principles of Assisted Rights). Reproductive Technology], art. 1 (2001), amended by Ministry of Health Order No. 176 315. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, (2003) (translation by Center for Reproductive Rights); Renlei Fuzhu Shengzhi Jishu art. 10 (1994) (effective June 1, 1995). Guanli Banfa [Measures for the Management of Assisted Reproduction Technology], 316. Hunqian Baojian Gongzuo Guifan (Xiuding) [Standards for Premarital Health-Care State Council Order No. 14, art. 14 (2001), amended by Ministry of Health Order No. 176 Work (Revised)], Wei Ji Fu Fa [MOH Department of Maternal and Infant Health-Care (2003) (translation by Center for Reproductive Rights); Renlei Fuzhu Shengzhi Jishu Notice] No. 147, sec. 1(1)(4)(3) (2002) (translation by Center for Reproductive Rights). Guifan [Standards for Assisted Reproductive Technology], secs. 1(2)(1), 3(1), (4) (2001), 317. Id. amended by Ministry of Health Order No. 176 (2003) (national and local permits for 318. Id. sec. 1(3). sperm banks) (translation by Center for Reproductive Rights). 319. Id.; Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 302. Renlei Fuzhu Shengzhi Jishu Guifan [Standards for Assisted Reproductive 33, art. 11 (1994) (effective June 1, 1995). Technology], secs. 3(5), (8) (2001), amended by Ministry of Health Order No. 176 (2003) 320. Hunqian Baojian Gongzuo Guifan (Xiuding) [Standards for Premarital Health-Care (translation by Center for Reproductive Rights); Renlei Jingziku Jishu Guifan [Standards Work (Revised)], Wei Ji Fu Fa [MOH Department of Maternal and Infant Health-Care for Sperm Banks], sec. 3(4) (2001). Notice] No. 147, sec. 1(3) (2002) (translation by Center for Reproductive Rights). 303. Renlei Jingziku Jishu Guifan [Standards for Sperm Banks], sec. 3(4) (2001); 321. Id. sec. 1(3). Shishi Renlei Fuzhu Shengzhi Jishu De Lunli Yuanze [Ethical Principles of Assisted 322. Xianfa [Constitution], art. 49 (2004) (“… husband and wife have the duty to Reproductive Technology], art. 4 (2001), amended by Ministry of Health Order No. 176 practice family planning.”) (2003) (translation by Center for Reproductive Rights); Renlei Fuzhu Shengzhi Jishu 323. Marriage Law of the P.R.C., art. 16 (2001). Guanli Banfa [Measures for the Management of Assisted Reproduction Technology], 324. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, arts. State Council Order No. 14, art. 22(4) (2001), amended by Ministry of Health Order No. 30–31, 33–34 (2001) (effective Sept. 1, 2002). 176 (2003) (punishable by a maximum fine of CNY 3000, administrative or criminal 325. Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of penalties) (translation by Center for Reproductive Rights). Family Planning Technical Services], arts. 1, 5 (2001), amended by State Council Order 304. Renlei Fuzhu Shengzhi Jishu Guanli Banfa [Measures for the Management of No. 428 (2004) (translation by Center for Reproductive Rights). Assisted Reproduction Technology], State Council Order No. 14, art. 22 (2001), amended 326. Id. arts. 1, 3. by Ministry of Health Order No. 176 (2003) (translation by Center for Reproductive 327. Id. arts. 7(1)–(3), 8(1)–(4), 9(1)–(4). Rights). 328. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, arts. 305. Id. arts. 3, 8–12 (MOH issues ART permits to qualified facilities); Renlei Fuzhu 10, 12, 18 (2001) (effective Sept. 1, 2002). Shengzhi Jishu Guifan [Standards for Assisted Reproductive Technology], secs. 329. Id. arts. 2, 18. 1(1)(1)(2)–(3), 1(2)(2) (2001), amended by Ministry of Health Order No. 176 (2003) 330. See Hubei Provincial People’s Congress, Hubeisheng Renkou Yu (specific national and local permits required for sperm banks) (translation by Center for Jihuashengyu Tiaoli [Hubei Province Population and Family Planning Reproductive Rights). Regulations], art. 19 (2003) (translation by Center for Reproductive Rights). 306. Renlei Fuzhu Shengzhi Jishu Guanli Banfa [Measures for the Management of 331. Id. art. 23; Liaoning People’s Congress, Liaoningsheng Renkou Yu Assisted Reproduction Technology], State Council Order No. 14, arts. 21–22 (2001), Jihuashengyu Tiaoli [Liaoning Province Population and Family Planning amended by Ministry of Health Order No. 176 (2003) (translation by Center for Regulations], art. 17 (2004) (translation by Center for Reproductive Rights); Tianjin Reproductive Rights). Provincial People’s Congress; Tianjinsheng Renkou Yu Jihuashengyu Tiaoli 307. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. [Tianjin Province Population and Family Planning Regulations], art. 20 (2003) 33, arts. 7–13 (1994) (effective June 1, 1995); Zhonghua Renmin Gongheguo Muying (translation by Center for Reproductive Rights). Baojian Fa Shishi Banfa [Implementation Measures for the P.R.C. Law on Maternal 332. Hubei Provincial People’s Congress, Hubeisheng Renkou Yu Jihuashengyu and Infant Health Care], State Council Order No. 308, arts. 3(2), 9, 14 (2001) (couples Tiaoli [Hubei Province Population and Family Planning Regulations], art. 29 “should” go for premarital health exams in regions implementing them) (translation (2003) (translation by Center for Reproductive Rights); Liaoning People’s Congress, by Center for Reproductive Rights); Hunqian Baojian Gongzuo Guifan (Xiuding) Liaoningsheng Renkou Yu Jihuashengyu Tiaoli [Liaoning Province Population [Standards for Premarital Health-Care Work (Revised)], Wei Ji Fu Fa [MOH and Family Planning Regulations], art. 25 (2004) (translation by Center for Department of Maternal and Infant Health-Care Notice] No. 147, sec. 1(1)(2) (2002) Reproductive Rights). (translation by Center for Reproductive Rights). 333. Liaoning People’s Congress, Liaoningsheng Renkou Yu Jihuashengyu Tiaoli 308. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, [Liaoning Province Population and Family Planning Regulations], art. 25 (2004) art. 10 (1994) (effective June 1, 1995); Zhonghua Renmin Gongheguo Muying Baojian (translation by Center for Reproductive Rights). Fa Shishi Banfa [Implementation Measures for the P.R.C. Law on Maternal and Infant 334. Shanghai Municipal People’s Congress, Shanghaishi Renkou Yu Health Care], State Council Order No. 308, arts. 3(2), 9–16 (2001) (translation by Center Jihuashengyu Tiaoli [Shanghai Municipal Population and Family Planning for Reproductive Rights); Hunqian Baojian Gongzuo Guifan (Xiuding) [Standards for Regulations], arts. 43(1)–(3) (2003) (translation by Center for Reproductive Rights). Premarital Health-Care Work (Revised)], Wei Ji Fu Fa [MOH Department of Maternal Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). and Infant Health-Care Notice] No. 147, sec. 1(1)(2) (2002) (translation by Center See International Monetary Fund, supra note 197. for Reproductive Rights); Xiao Shitan, Pre-marital Medical Exams Only for Giving 335. Shanghai Municipal People’s Congress, Shanghaishi Renkou Yu “Suggestions”?, Jiangnan Times (China), Apr. 13, 2003, http://www.china-aids.org/ Jihuashengyu Tiaoli [Shanghai Municipal Population and Family Planning english/News/News055.htm. Regulations], arts. 43(1)–(3) (2003) (translation by Center for Reproductive Rights); 309. Hunyin Dengji Tiaoli [Regulation on Marriage Registration], State Council Order Beijing Municipal People’s Congress, Beijingshi Renkou Yu Jihuashengyu Tiaoli No. 387 (2003) (translation by Center for Reproductive Rights); Zhonghua Renmin [Beijing Municipal Population and Family Planning Regulations], arts. 38–40 Gongheguo Muying Baojian Fa Shishi Banfa [Implementation Measures for the P.R.C. (2003) (only applicable to civil servants and employees of state-owned enterprises) Law on Maternal and Infant Health Care], State Council Order No. 308, arts. 10, 16 (translation by Center for Reproductive Rights). (2001) (couples “should” go for premarital exams and marriage registration offices 336. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, “should” inspect the couple’s premarital certificates in regions implementing premarital art. 21 (2001) (effective Sept. 1, 2002). See Shanghai Municipal People’s Congress, exams). Shanghaishi Renkou Yu Jihuashengyu Tiaoli [Shanghai Municipal Population 310. See e.g. Hangzhou City’s People’s Government, Regulations on Marriage and Family Planning Regulations], arts. 36–41 (2003) (translation by Center for Registration, http://english.hangzhou.gov.cn/english/Citizens/Marriage/ Reproductive Rights); Beijing Municipal People’s Congress, Beijingshi Renkou userobject8ai21.html (last visited July 1, 2005). Yu Jihuashengyu Tiaoli [Beijing Municipal Population and Family Planning 311. 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People’s Congress, Hubeisheng Renkou Yu Jihuashengyu Tiaoli [Hubei Province of Family Planning Technical Services], art. 17 (2001), amended by State Council Order Population and Family Planning Regulations], art. 29 (2003) (translation by Center No. 428 (2004) (consent of person undergoing sterilization required) (translation by for Reproductive Rights). Center for Reproductive Rights). 337. Hubei Provincial People’s Congress, Hubeisheng Renkou Yu Jihuashengyu 362. Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Tiaoli [Hubei Province Population and Family Planning Regulations], arts. 30, Country Reports on Human Rights Practices 2004: China (2005), http://www. 34–36 (2003) (translation by Center for Reproductive Rights). state.gov/g/drl/rls/hrrpt/2004/41640.htm (Released Feb. 28, 2005) [hereinafter 338. National Population and Family Planning Commission of China (NPFPC), Country Reports on Human Rights Practices 2004: China]. Government of the P.R.C., Project Initiatives: Quality of Care of Reproductive 363. Id. Health in China Today, http://www.npfpc.gov.cn/en/rhpro.htm (last visited Feb. 9, 364. Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of 2005) [hereinafter NPFPC, Project Initiatives]. Until 2002, the NPFPC was known Family Planning Technical Services], art. 3 (2001), amended by State Council Order No. as the State Family Planning Commission (SFPC). 428 (2004) (translation by Center for Reproductive Rights). 339. Id. 365. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 41 340. Id. (2001) (effective Sept. 1, 2002); Liaoning People’s Congress, Liaoningsheng Renkou 341. Id.; Zhang Weiqing, Address at the Fifth Asian Pacific Population Conference (Dec. Yu Jihuashengyu Tiaoli [Liaoning Province Population and Family Planning 16, 2002) (Mr. Zhang is the Minister of Health of the P.R.C.) (transcript available at Regulations], art. 45 (2004) (translation by Center for Reproductive Rights); Beijing http://www.cpirc.org.cn/en/enews20021225-1.htm). Provincial People’s Government, [Beijingshi Shehui Fuyang Fei Zhengshou 342. NPFPC, Project Initiatives, supra note 338. Guanli Banfa [Beijing Province Measures on the Administration of Social 343. Department of Planning and Accounting, National Population and Compensation Fees Collection], art. 5 (2002) (translation by Center for Reproductive Family Planning Commission of China (NPFPC), National Family Planning Rights). and Reproductive Health Survey (2001), § 3 (2002) [hereinafter National Family 366. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. Planning and Reproductive Health Survey (2001)]. 25 (2001) (effective Sept. 1, 2002). 344. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 367. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, 19 (2001) (effective Sept. 1, 2002). art. 10 (1994) (effective June 1, 1995). 345. Id. art. 20. 368. NPFPC, Main Achievements, supra note 346. 346. Glasier, A. et al., Case Studies in Emergency Contraception from Six Countries, 22 Int’l 369. Id.; NPFPC, Project Initiatives, supra note 338. Family Planning Perspectives 57–61 (1996). See also National Population and 370. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 19 Family Planning Commission of China (NPFPC), Government of the P.R.C., (2001) (effective Sept. 2002). Main Achievements of Population and Family Planning Program of China, 371. Women’s Rights and China’s New Family Planning Law: Roundtable before the http://www.npfpc.gov.cn/en/fpcn01-en.htm (last visited June 12, 2005) [hereinafter Congressional-Executive Commission on China, 107th Cong. Sess. 2, at 36 (2002) (prepared NPFPC, Main Achievements]. statement of Robert Aird, former chief, China Branch and senior research specialist on 347. International Consortium for Emergency Contraception, Dedicated China, U.S. Bureau of the Census). Emergency Contraception Products Worldwide, http://www.cecinfo.org/html/ 372. Id. at 37 (prepared statement of Robert Aird, former chief, China Branch and res-product-issues.htm#table1 (last updated Feb. 14, 2005). senior research specialist on China, U.S. Bureau of the Census); Nancy E. Riley, China’s 348. China Population Information and Research Center, China/unfpa: Population: New Trends and Challenges, 59 Population Bull. 12–13 (2004) (the shift in Reproductive Health/Family Planning End of Project – Women Survey Report policy was announced in the 1984 “Document No. 7”). 16 (2004). 373. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 19 349. National Population and Family Planning Commission of China (NPFPC), (2001) (effective Sept. 2002). Government of the P.R.C., Progress since the ICPD, http://www.npfpc.gov. 374. Id. art. 21; Hubei Provincial People’s Congress, Hubeisheng Renkou cn/en/fpcn02-en.htm (last visited April 15, 2005) [hereinafter NPFPC, Progress since Yu Jihuashengyu Tiaoli [Hubei Province Population and Family Planning the ICPD]. See China Population Information and Research Center, supra note Regulations], art. 31 (2003) (translation by Center for Reproductive Rights). 348, at 13–16. 375. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, arts. 350. China Population Information and Research Center, supra note 348, at 16. 23, 27 (2001) (effective Sept. 2002); National Family Planning and Reproductive 351. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 13 Health Survey (2001), supra note 343, § 7; U.S. Department of Justice, U.S. (2001) (effective Sept. 1, 2002). Government, Perspective Series: Chinese State Birth Planning in the 1990s and 352. State Administration for Industry and Commerce, Government of the Beyond 12–13 (2001), http://uscis.gov/graphics/services/asylum/ric/documentation/ P.R.C., Guanyu Yinjin Kanbo Youguan Xingshenghuo Chanpin Guangguo De pschn01001.pdf [hereinafter Chinese State Birth Planning in the 1990s and Guiding [Regulations on Prohibition against Publishing or Broadcasting Beyond]. Advertisements for Sex Products] (1989) (translation by Center for Reproductive 376. Xu Qian et al., Unintended Pregnancy and Induced Abortion Among Unmarried Women Rights). in China: A Systematic Review, 4 BioMed Central Health Services Research (2004), 353. State Administration for Industry and Commerce, Government of http://www.biomedcentral.com/1472-6963/4/1; UNDP/UNFPA/WHO/World the P.R.C., Guanyu Fabu Yu Xingshenghuo Youguan De Chanpin He Fuwu Bank Special Programme of Research, Development and Research Training in Guangguo Wenti De Daan [Concerning the Answer to the Question of Human Reproduction (HRP), Young Female Migrant Workers in China in Need Advertisements for Sex Products and Services] (1998) (translation by Center for of Reproductive Health and Services (Social Science Research Policy Briefs, Series Reproductive Rights). 2, No. 2, 2002) (migrant workers are not registered residents and therefore ineligible to 354. Ministry of Health et al., Guanyu Yufang Aibibing Tuiguang Shiyong receive public health and welfare benefits). Anquantao (Biyuntao) De Shishi Yijian [Suggestions Concerning HIV 377. CEDAW Committee, Third and fourth periodic reports of State parties: China, supra note Prevention by Promotion of Condom Use], Wei Ji Kong Fa [MOH Department of 150, Part I, ¶ 12. Infectious Disease Control Notice] No. 248, § 3(1) (2004) (translation by Center for 378. China Family Planning Association (CFPA), Ziehui Ziyuan [Association Reproductive Rights) [hereinafter Ministry of Health, Suggestions Concerning Resources], http://www.chinafpa.org.cn/xhjs05.asp (last visited June 30, 2005) HIV Prevention by Promotion of Condom Use]. (translation by the Center for Reproductive Rights) [hereinafter CFPA Resources]. 355. Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of 379. Id. Family Planning Technical Services], arts. 7(1)–(3), 8(1)–(4), 9(1)–(4) (2001), amended by 380. Id.; China Family Planning Association (CFPA), Zhongguo Jihua Shengyu State Council Order No. 428 (2004) (translation by Center for Reproductive Rights). Ziehui Fazhan Zhanlue [CFPA Development Strategy (1996-2010)], http://www. 356. NPFPC, Progress since the ICPD, supra note 349 (referring to figures from the chinafpa.org.cn/xhjs03.asp (last visited June 30, 2005) (translation by Center for NPFPC/CPDRC, Handbook of Commonly Used Data on Population and Family Reproductive Rights) [hereinafter CFPA Development Strategy (1996-2010)]. Planning, 2003). 381. China Family Planning Association (CFPA), Shengzhi Jiankang Xiwun Fuwu 357. NPFPC, Project Initiatives, supra note 338. Zhongxin [Reproductive Health Consultation Service Cnters], http://www. 358. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, chinafpa.org.cn/szjk01.asp (last visited June 30, 2005) (translation by the Center for art. 19 (1994) (effective June 1, 1995). Reproductive Rights). 359. Id.; Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of 382. Government of the P.R.C., National Report of the P.R.C. to the Fifth Family Planning Technical Services], art. 17 (2001), amended by State Council Order No. Asian and Pacific Population Conference 32 (2002) [hereinafter National Report 428 (2004) (consent of person undergoing sterilization required) (translation by Center of the P.R.C. to the Fifth Asian and Pacific Population Conference]; NPFPC, for Reproductive Rights). Progress since the ICPD, supra note 349. 360. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 383. CFPA Development Strategy (1996-2010), supra note 380. 34 (2001) (effective Sept. 1, 2002). 384. Id. 361. See Id. arts. 4, 36 (family planning personnel “shall perform their … duties strictly in 385. 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Law on Maternal and Infant Health Care], State Council Order He Xiaochu Xinshenger Poshangfeng” Xiangmu Gongzuo Xianjin Jiti He No. 308, art. 24 (2001) (translation by Center for Reproductive Rights). Xianjin Geren De Jueding [Decision Concerning Recognition of Excellence of 408. Maternal and Infant Health-Care Department Organization, supra note 396, Organizations and Persons in Implementing the “Safe Motherhood Program to sec. II(4)(1). Decrease Maternal Mortality and Neonatal Tetanus”], Wei Ji Fu Fa [Department 409. 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Law on Maternal and Infant html (last visited June 30, 2005); China Development Brief, Directory of Health Care], State Council Order No. 308, art. 19 (2001) (translation by Center for International NGOs: Swiss Red Cross, http://www.chinadevelopmentbrief.com/ Reproductive Rights). dingo/entry.asp?mode=toc&start=185&count=25&org=1552&letter=S (last visited June 400. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, 30, 2005); ProLiteracy, Literacy in Action: Spreading the Light, International art. 16 (1994) (effective June 1, 1995); Zhonghua Renmin Gongheguo Muying Baojian Programs Update 2004-05, at 9 (2004), http://www.proliteracy.org/downloads/ Fa Shishi Banfa [Implementation Measures for the P.R.C. Law on Maternal and Infant IP_04.pdf Health Care], State Council Order No. 308, art. 17 (2001) (translation by Center for 422. 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Postnatal Care (2003), http://www.terma.org/motherchild.html (last visited June 30, Necessary Sex-Determinations and Sex-Selective Abortions], arts. 9–10 (2002) (effective 2005). Jan. 1, 2003) (only available at facilities licensed to perform abortions and must be 426. Plan, supra note 422; PATH, China Adolescent Health Project, http://www. administered under the supervision and guidance of a physician) (translation by Center path.org/projects/china_adolescent_health_project.php (last visited July 1, 2005). for Reproductive Rights); China Reiterates Ban on Abortion Pill Sale, Eastday.com 427. Health Unlimited, China, http://www.healthunlimited.org/china/index.htm (Shanghai, China), Oct. 11, 2001, http://www.china.org.cn/english/DO-e/20356.htm. (last visited June 29, 2005). 446. MOH & NPFPC, Rules for Birth Control Surgeries, supra note 443, at 65, 82, 428. Id. 90 (Rivanol is used for medical abortions in the second trimester). 429. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, 447. Id. arts. 14, 24 (1994) (effective June 1, 1995). 448. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, 430. Id. art. 14. arts. 18(1)–(3) (1994) (effective June 1, 1995). 431. The World Bank, China Comprehensive Maternal and Child Health 449. Guanyu Jinzhi Fei Yixue Xuyao De Taier Xingbie Jianding He Xuanze Xingbie Project Report, supra note 392, at 28; Notice on Recognition of Excellence in De Rengong Zhongzhi Renshen De Guiding [Regulation Prohibiting Non-Medically Implementing the Safe Motherhood Program, supra note 391. Necessary Sex-Determinations and Sex-Selective Abortions], art. 7 (2002) (effective Jan. 432. National Report of the P.R.C. to the Fifth Asian and Pacific Population 1, 2003) (“sanctioned” pregnancy is one where a family planning license for reproduction Conference, supra note 382, at 6. has been issued) (translation by Center for Reproductive Rights). 433. Henk Bekedam, Address at the Beijing Forum: Diet, Health and Development 450. Id.; Anhui Province People’s Congress, Anhuisheng Jinzhi Fei Yixue Xuyao (Apr. 22, 2005) (transcript available at http://www.wpro.who.int/chn/news/ Jianding Taier Xingbie He Xuanze Xingbie Zhongzhi Renshen De Guiding drbekedamspeech32.htm) (referring to findings from the Ministry of Health and [Regulations on Prohibiting Non-Medically Necessary Sex-Determinations and Sex- the World Health Organization Report “The Vitamin and Mineral Deficiency: A Selective Abortions], art. 9 (2000) (ordered to undergo “long-term birth reduction”) Damage Assessment Report for China”); Zhonghua Renmin Gongheguo Muying (translation by the Center for Reproductive Rights). Calculations based on exchange rate Baojian Fa Shishi Banfa [Implementation Measures for the P.R.C. Law on Maternal of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). See International Monetary Fund, and Infant Health Care], State Council Order No. 308, arts. 28–29 (2001) (e.g., infant supra note 197. formulas must have a label that clearly indicates breast milk is superior to formula, 451. Guanyu Jinzhi Fei Yixue Xuyao De Taier Xingbie Jianding He Xuanze Xingbie and manufacturers are strictly prohibited from giving promotional goods in terms of De Rengong Zhongzhi Renshen De Guiding [Regulation Prohibiting Non-Medically sample products, equipment, funding or information to any medical or health facilities) Necessary Sex-Determinations and Sex-Selective Abortions], art. 7 (2002) (effective (translation by Center for Reproductive Rights); Ministry of Health, Government Jan. 1, 2003) (translation by Center for Reproductive Rights); Guiyang Municipality of the P.R.C., Weishengbu Bangongting Guanyu Fazhan “Shijie Muru Weiyang People’s Congress, Guizhou Province People’s Congress, Guizangshi Jinzhi Zhou” Huodong De Tongzhi [Notice of the Ministry of Health General Office Xuanze Xing Zhongzhi Renshen Guiding [Regulations Prohibiting Sex- Concerning Development of “World Breastfeeding Week” Activities], art. 2 Selective Abortions], arts. 9–10 (2004) (effective Jan.1, 2005) (translation by the Center (2002), http://www.moh.gov.cn/public/open.aspx?n_id=2730 (translation by the for Reproductive Rights); Hunan Province People’s Government, Hunansheng Center for Reproductive Rights). Jinzhi Fei Yixue Xuyao Jianding Taier Xingbie He Xuanze Xingbie Zhongzhi 434. China Population Information and Research Center, supra note 348, at 41 Renshen Guiding [Regulations Prohibiting Non-Medically Necessary Sex- (referring to estimates by the NPFPC based on abortion statistics from the Ministry of Determinations and Sex-Selective Abortions], Order No. 194, arts. 11–14 (2004) Health); National Report of the P.R.C. to the Fifth Asian and Pacific Population (effective Mar. 1, 2005) (requires verification of threat to women’s life or health by two Conference, supra note 382, at 4. physicians) (translation by the Center for Reproductive Rights); Anhui Province 435. UNDP/UNFPA/WHO/World Bank Special Programme of Research, People’s Congress, Anhuisheng Jinzhi Fei Yixue Xuyao Jianding Taier Xingbie Development and Research Training in Human Reproduction (HRP), Use of He Xuanze Xingbie Zhongzhi Renshen De Guiding [Regulations on Prohibiting Emergency Contraceptive Pills could Halve the Induced Abortion Rate in Non-Medically Necessary Sex-Determinations and Sex-Selective Abortions], art. 9 Shanghai, China (Social Science Research Policy Briefs, Series 1, No. 4, 2001), http:// (2000) (also allows abortion to comply with provincial population and family planning www.who.int/reproductive-health/hrp/Policy_briefs/pb4.pdf. department regulations) (translation by the Center for Reproductive Rights); FuJian 436. Id. Province People’s Congress, Fujiansheng Jinzhi Fei Yixue Xuyao Jianding Taier 437. U.N. Population Division (UNFPA), U.N. Department of Economic and Xingbie He Xuanze Xingbie Zhongzhi Renshen Tiaoli [Regulations Prohibiting Social Affairs, Abortion Policies: A Global Review 95, 95–96 (2002), http://www. Non-Medically Necessary Sex-Determinations and Sex-Selective Abortions] un.org/esa/population/publications/abortion/doc/chinas1.doc [hereinafter UNFPA, art. 8(4) (2003) (allows for abortion if divorced or widowed). See also China Intends to Abortion Policies]; Wang Duolao et al., Contraceptive failure and its subsequent effects in Redress Sex Ratio Imbalance by Amending Criminal Law, supra note 441 (NPFPC statistics China: a two-stage event history analysis, 13 Asia-Pacific Population J. 45, 45–64 (1998) indicate 29 provinces, autonomous regions and municipalities have local rules banning (89.5% contraceptive failure resulted in abortions in urban areas and 54.6% in rural areas). sex identification and sex-selective abortions). 438. Chen Wei, Socio-Economic Determinants of Induced Abortion in China, 19 Asia-Pacific 452. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, Population J. 5, 5–6 (2004). art. 19 (1994) (effective June 1, 1995). 439. Id. at 11. The government can usually exert more control over urban, well-educated 453. Id. and higher income people through household registration and work units with which to 454. Id. art. 36. monitor their lives, consequently, leading to greater adherence with the family planning 455. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 17 policies. Id. at 5. The incidence of abortions is eight times greater among women (2001) (effective Sept. 1, 2002). residing in urban areas as compared to rural women, six times higher in college-educated 456. See Abortion Dispute Unveils Contradictions in Law, Eastday.com (Shanghai, China), women than illiterate women and increases exponentially along with salaries. Id. at 11. Sept. 18, 2002, http://www.china.org.cn/english/2002/Sep/43485.htm (hospital refused 440. Criminal Law of the P.R.C. (1997), amended by Presidential Order No. 32 (2005). to perform abortion without husband’s consent, the abortion was performed only when 441. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. she falsified her status as single, estranged husband brought suit against his wife on the 35 (2001) (effective Sept. 1, 2002); China to Make Sex-Selective Abortions a Crime, China basis that his right to decide whether or not to abort the fetus was ignored). Daily, Jan. 7, 2005, http://english.people.com.cn/200501/07/print20050107_169986. 457. UNFPA, Abortion Policies, supra note 437, at 95-96. html; China Intends to Redress Sex Ratio Imbalance by Amending Criminal Law, People’s 458. Id. Daily Online, Jan. 10, 2005, http://english1.people.com.cn/200501/10/print20050110_ 459. Jihua Shengyu Jishu Fuwu Guanli Tiaoli [Regulations for the Management of 170200.html. Family Planning Technical Services], State Council Order No. 428, arts. 7(3), 8(3), 9(4), 442. U.S. Department of State, Country Reports on Human Rights Practices 10(1) (2004) (translation by Center for Reproductive Rights). 2004, supra note 362. 460. See Population and Family Planning Law of the P.R.C., Presidential Order No. 63, 443. Ministry of Health & National Population and Family Planning arts. 4, 36, 39, 44 (2001) (effective Sept. 1, 2002) (family planning personnel “shall perform Commission of China (NPFPC), Jieyu Shoushu Guichang [Rules for Birth their … duties strictly in accordance with law, and enforce the law in a civil manner, Control Surgeries] 59, 72 (3rd ed. 2004), http://www.moh.gov.cn/uploadfile/2004 and they may not infringe upon legitimate rights and interests of citizens”) (criminal, 07/20047318849142.doc (Mifepristone is administered to women between 18-40 within administrative penalties and/or heavy fines for state functionaries who illegally perform 49 days of conception and vacuum aspiration is used on pregnancies under 10 weeks) a family planning procedure on another person, “infringe[] on a citizen’s personal (translation by the Center for Reproductive Rights) [hereinafter MOH & NPFPC, rights … [or] abuse his power … ”) (citizens may sue state family planning agencies for Rules for Birth Control Surgeries]; Guanyu Jinzhi Fei Yixue Xuyao De Taier infringement of their legitimate rights and interests); See also State Indemnity Law of the Xingbie Jianding He Xuanze Xingbie De Rengong Zhongzhi Renshen De Guiding P.R.C., Presidential Order No. 23, art. 2 (1994) (effective Jan. 1, 1995) (citizens may sue [Regulation Prohibiting Non-Medically Necessary Sex-Determinations and Sex- officials for infringement of their rights); U.S. Department of State, Country Reports Selective Abortions], art. 3 (2002) (effective Jan. 1, 2003) (facilities performing abortions on Human Rights Practices 2004, supra note 362 (senior government officials and must be licensed to perform abortions by the health or family planning department) several NPFPC circulars repeatedly state that family planning officials are prohibited (translation by Center for Reproductive Rights). from coercing women into sterilizations or abortions). 444. Heather Boonstra, Voicing Concern for Women, Abortion Foes Seek Limits on Availability of 461. U.S. Department of State, Country Reports on Human Rights Practices Mifepristone, 4 The Guttmacher Rep. On Pub. Pol’y 3, 3 (2001). 2004, supra note 362. 445. Guanyu Jinzhi Fei Yixue Xuyao De Taier Xingbie Jianding He Xuanze Xingbie 462. Id. De Rengong Zhongzhi Renshen De Guiding [Regulation Prohibiting Non-Medically 463. Id. (Seven provinces require abortions and ten provinces require unspecified PAGE 74 WOMEN OF THE WORLD:

“remedial measures” for pregnancies in violation of family planning regulations). E.g. certificates in the provinces of Hunan and Jiangsu). Anhui Province People’s Congress, Anhuisheng Jinzhi Fei Yixue Xuyao Jianding 498. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note Taier Xingbie He Xuanze Xingbie Zhongzhi Renshen De Guiding [Regulations 464, at 20. on Prohibiting Non-Medically Necessary Sex-Determinations and Sex-Selective 499. State Council, Government of the P.R.C., The China Medium and Long Term Abortions], art. 10 (2000) (“pregnancies not in accordance with reproductive laws should Plan for HIV/AIDS Prevention (CMLTP) 1998-2010, Doc. No. 38, sec. 4 (Nov. 12, be immediately aborted”) (translation by Center for Reproductive Rights). 1998), http://www.unchina.org/unaids/ekey15.html. 464. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, A 500. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note Joint Assessment of HIV/AIDS Prevention, Treatment and Care in China 1 464, at 18. (2003) (survey conducted by the China Center for Disease Control and Prevention 501. State Council, Government of the P.R.C. The China HIV/AIDS and supported by World Health Organization (WHO), The Joint United Nations Containment, Prevention and Control Action Plan (2001-2005), pmbl. (2001), Programme on HIV/AIDS (UNAIDS) and U.S. Center for Disease Control). http://www.unchina.org/unaids/ekey16.html. 465. Id. at 11. 502. Id. secs. I(2)–(4). 466. Id. at 9–10 (referring to data from the China HIV/AIDS Case Report, December 503. Id. sec. II(2). 2002). 504. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note 467. Id. at 9–10, 12; Edmund Settle, Legalize Prostitution in China, South China 464, at 18–19. Morning Post (Hong Kong), July 29, 2004. 505. Id. at 21. Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY 468. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note (renmenbi). See International Monetary Fund, supra note 197. 464, at 12. 506. Yiwu Renyuan Aizibing Bingdu Zhiye Pulu Fanghu Gongzuo Jiaodao Yuanze 469. Id. at 11. (Shixing) [Principles for Prevention and Protection of Medical Personnel to HIV 470. Id. at 14. Exposure], Ministry of Health Order of June 4, 2004, arts. 1–19 (2004). 471. Id. at 10. 507. China Enhances Efforts to Prevent Mother-to-Child AIDS Transmission, People’s Daily, 472. Id. at 13–14. Nov. 9, 2004, http://english.peopledaily.com.cn/200411/09/eng20041109_163213.html. 473. Id. 508. Zhang Fujie, Chinese Center for Disease Control and Prevention & 474. Id. at 14. In a social attitude survey, 75% of respondents reported avoiding contact National Center for AIDS/STD Prevention and Control, Progress of the with people with HIV/AIDS, 30% thought they belonged in closed sanatoriums, 88% China National Free Antiretroviral Therapy Program 17–18 (2003) (powerpoint though they should be isolated from society and 45% believed that HIV/AIDS resulted presentation). from low morals. Id. 509. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note 475. Xiao Tang, Blushing in the Dark, 43 Beijing Review 26, 26–27 (2004), http://www. 464, at 23 (the exemption period began in 2002). bjreview.com.cn/200443/Nation-200443(A).htm; Edmund Settle, Yes, Gay Men are at 510. Id. at 23 (the State Food and Drug Commission set up a fast track system for ARVs) Risk in China, International Herald Tribune, Jan. 21, 2005, http://www.iht.com/ 511. Id. bin/pring_ipub.php?file=/articles/2005/01/20/opinion/edsettle.html. 512. Ministry of Health, Suggestions Concerning HIV Prevention by Promotion 476. Xiao Tang, supra note 475, at 26–27 (e.g. Zhejiang Provincial Health Bureau and of Condom Use, supra note 354, §§ 1, 3(1) (free condoms distributed by MOH and the Howard Brown Health Center offers free HIV testing and counseling at gay NPFPA); China to Issue Condoms Nationwide, supra note 387. entertainment venues); Edmund Settle, Yes, Gay Men are at Risk in China, supra note 475. 513. Notice on the Administration of HIV Positive People and Patients, supra note 477. A Battle of Survival for AIDS Orphans, China Daily, Dec. 29, 2004, http://www. 287, art. 3(4)(2). china.org.cn/english/features/aids/116227.htm (UNICEF estimates and estimates by 514. Id. art. 3(4)(3). China Center for Disease Control). 515. Id.; Nation to Invest Hugely in HIV/AIDS Prevention, Control, Xinhua News 478. Law on the Prevention and Treatment of Infectious Diseases, Presidential Order No. Agency (China), Sept. 8, 2004, http://english1.people.com.cn/200409/08/print_ 15, art. 1 (1989), amended by Presidential Order No. 17 (2004) (translated by Center for 20040908_156265.html; Xiao Tang, supra note 475, at 26–27 (free HIV testing for gay Reproductive Rights). men is offered by Guangdong and Zhejiang provincial governments). 479. Id. art. 12. 516. State Council, Government of the P.R.C., Notice on Strengthening HIV/ 480. Id. art. 39(3) (HIV/AIDS and STIs are considered class B infectious diseases). AIDS Prevention and Control, Doc. No. 7, sec. II ¶ 2 (2004) [hereinafter Notice on 481. Id. arts. 3, 31, 33 (STIs addressed in the Law include, among others, gonorrhea, Strengthening HIV/AIDS Prevention and Control]. syphilis, hepatitis) (reports are forwarded to the local health department, the local people’s 517. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note government, and the superseding health department). 464, at 27. 482. Id. art. 16 (prohibited jobs are determined by the central government and the 518. Zhang Fujie, supra note 508, at 6; Notice on Strengthening HIV/AIDS Ministry of Health). Prevention and Control, supra note 516, sec. VI ¶ 1 (free education for AIDS orphans) 483. Criminal Law of the P.R.C., art. 330 (1997), amended by Presidential Order No. 32, (program is co-sponsored by the China Family Welfare Fund). art. 330 (2005). 519. Ministry of Health, Government of the P.R.C., Guanyu Jibing Yufang 484. Law on the Prevention and Treatment of Infectious Diseases, art. 77 (1989), amended Kongzhi Tixi Jianshe De Ruogao Guiding [Regulations Concerning the by Presidential Order No. 17 (2004) (translated by Center for Reproductive Rights). Establishment of Disease Prevention and Control System], Order No. 40, art. 485. Rules for the Implementation of Frontier Health and Quarantine Law of the P.R.C., 9 (2005); Zhang Fujie, supra note 508, at 6; E.g. The Shenzhen Municipal Center State Council Order of Feb. 10, 1989, art. 6 (1989). for Disease Control and Prevention provides counseling, prevention advice, clinical 486. Id. art. 99; Rules Governing the Implementation of the Law of the P.R.C. on the treatment and follow-up for HIV/AIDS patients. HIV Infections Jump by 180% in Entry and Exit of Aliens, State Council Order of July 13, 1994, art. 7(4) (1994). Shenzhen, Shenzhen Daily (China), Mar. 30, 2005, http://news.xinhuanet.com/ 487. Criminal Law of the P.R.C., art. 332 (1997), amended by Presidential Order No. 32 english/2004-03/30/content_2762002.htm. (2005) (also punishable by criminal detention by the local public security organ up to six 520. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note months). 464, at 23 (referring to the MOH’s “Guidelines for Management of ARV Drugs Used on 488. Blood Donation Law of the P.R.C., Presidential Order No. 93, art. 1 (1997) (effective HIV/AIDS (Temporary)”); Zhang Fujie, supra note 508, at 7–10. Oct. 1, 1998). 521. Notice on Strengthening HIV/AIDS Prevention and Control, supra note 516, 489. Id. arts. 8–10. sec. II(1) ¶ 2. 490. Id. art. 9; Notice on the Administration of HIV Positive People and Patients, 522. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note supra note 287, art. 3(2)(5) (prohibits HIV positive people and patients from donating 464, at 25. blood). 523. Id. at 22. 491. Xueyi Zhipin Guanli Tiaoli [Regulations on the Management of Blood Products], 524. Id. at 25. State Council Order of Dec. 30, 1996, art. 1 (1996). 525. Id. at 19, 22 (among the departments involved are the Ministry of Justice, the Trade 492. Criminal Law of the P.R.C., art. 333 (1997), amended by Presidential Order No. 32 Unions, the Women’s Federation, the Youth League and the Ministry of Education). (2005). 526. Ministry of Health, Suggestions Concerning HIV Prevention by Promotion 493. See Rupert Wingfield Hayes, China Court Orders AIDS Compensation, Sept. 11, 2001, of Condom Use, supra note 354, §§ 2, 3(1); Beijing Promotes Condom Use to Fight http://news.bbc.co.uk/2/hi/asia-pacific/1536876.stm (the Jiangsu Provincial People’s HIV/AIDS, People’s Daily (China), Nov. 25, 2004, http://english1.people.com. Court ordered a hospital to pay CNY 1 million in compensation to the patient’s family). cn/200411/25/print20041125_165078.html. 494. See Law on the Prevention and Treatment of Infectious Diseases, art. 3 (1989), 527. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note amended by Presidential Order No. 17 (2004) (list of infectious diseases). 464, at 22. 495. Law of the P.R.C. on Maternal and Infant Health Care, Presidential Order No. 33, 528. Notice on Strengthening HIV/AIDS Prevention and Control, supra note art. 9 (1994) (effective June 1, 1995). 516, sec. II(1) ¶ 4. 496. Hunyin Dengji Tiaoli [Regulation on Marriage Registration], State Council Order 529. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note No. 387 (2003) (translation by Center for Reproductive Rights). 464, at 22; Notice on Strengthening HIV/AIDS Prevention and Control, supra 497. Official: HIV Carriers Have Right to Marry, China Daily, Nov. 28, 2002, http:// note 516, sec. II(1) ¶ 5. Migrant workers are also referred to as “floating population” service.china.org.cn/link/wcm/Show_Text?info_id=113348&p_qry=marriage (various which comprises mainly of redundant workers from rural areas that migrated to urban news agencies reported that persons living with HIV/AIDS cannot get marriage cities for employment. CHINA PAGE 75

530. Ministry of Health & U.N. Theme Group on HIV/AIDS in China, supra note 565. Lawmakers Call on Ban of Fetus Sex, Xinhua News Agency (China), Feb. 27, 2005, 464, at 22. http://www.chinadaily.com.cn/english/doc/2005-02/27/content_419843.htm. 531. Notice on the Administration of HIV Positive People and Patients, supra note 566. Id. 287, arts. 1(2), 3(2)(1). 567. China Statistical Yearbook 2003, supra note 134, ch. 4-2, at 97 (birth rates reflect 532. Id. art. 3(2)(1). the average annual number of births during a year per 1,000 persons in the population). 533. Id. art. 2(4). 568. China Statistical Yearbook 2003, supra note 134, ch. 4-12, at 111 (figures vary 534. Notice on Strengthening HIV/AIDS Prevention and Control, supra note between regions with a low of 0.73 in Beijing and a high of 1.46 in Ningxia). 516, sec. VI. 569. United Nations Population Fund (UNFPA), UNFPA Global Reach: China 535. 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Department of Justice, Chinese State Birth Planning in the 1990s and Beyond, China Hotels, Schools Turn Away AIDS Orphans, Radio Free Asia, Aug. 12, 2004, supra note 375, at 177–186; Nancy E. Riley, supra note 372, at 12. http://www.rfa.org/english/news/social/2004/08/12/143552/ (reports of local officials 572. Population and Family Planning Law of the P.R.C., Presidential Order No. 63, art. 2 detaining and harassing organizers of schools and orphanages for AIDS orphans). (2001) (effective Sept. 1, 2002). 538. Sexual Health Center for Young People Opens, Xinhua News Agency (China), Oct. 573. National Population and Family Planning of China (NPFPC), Government 25, 2005, http://www.china.org.cn/english/China/78348.htm (referring to the fifth of the P.R.C., Panorama: Future Goals, http://www.npfpc.gov.cn/en/fpcn04- national census in 2000). en.htm (last visited Mar. 31, 2005). 539. See Regional Office for the Western Pacific, World Health Organization 574. 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Regulations], arts. 25–28 (2003); Jilin Provincial People’s Congress, Jilinsheng cn/200308/07/eng20030807_121839.shtml (clinic for pregnant teenagers in Chengdu, Renkou Yu Jihuashengyu Tiaoli [Jilin Province Population and Family Planning Sichuan Province); Abortion Center Opens to Help Girls, Xinhua News Agency (China), Regulations], arts. 20–25 (2003); Beijing Municipal People’s Congress, Beijingshi Dec. 3, 2003, http://www.china.org.cn/english/China/81451.htm (abortion/maternity Renkou Yu Jihuashengyu Tiaoli [Beijing Municipal Population and Family clinics in Chongqing municipality, Hangzhou, Jinan, Harbin). Planning Regulations], arts. 17–18 (2003); Tianjin Provincial People’s Congress; 544. 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662. Civil Procedure Law of the P.R.C., Presidential Order No. 44, arts. 21, 62 (1991). 705. Marriage Law of the P.R.C., art. 24 (2001); Law of Succession of the P.R.C., 663. Supreme People’s Court of the P.R.C. Judicial Committee, Government Presidential Order No. 24, arts. 10, 30 (1985); Law of the P.R.C. on the Protection of of the P.R.C., Zuigao Renmin Fayuan Guanyu Shiyong “Zhonghua Renmin Rights and Interests of Women, art. 34 (2005) (effective Jan. 1, 2006) (translation by Gongheguo Hunyin Fa” Ruogan Wenti De Jieshi (II) [Supreme People’s Court Center for Reproductive Rights). Judicial Interpretation on the Application of the Marriage Law of P.R.C. (II)], 706. Law of the P.R.C. on the Protection of Rights and Interests of Women, arts. 31, 47 arts. 11(a), (c), 19 (2003) (effective Apr. 1, 2004), http://www.court.gov.cn/lawdata/ (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights); Marriage explain/civilcation/200312290019.htm (translation by Center for Reproductive Rights) Law of the P.R.C., art. 13 (2001). [hereinafter Supreme People’s Court Judicial Interpretation on the Application of 707. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 47 the Marriage Law of P.R.C. (II)]. (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). 664. Id. art. 22. 708. Marriage Law of the P.R.C., art. 13 (2001). 665. Marriage Law of the P.R.C., art. 19 (2001). 709. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 666. Id. art. 39. 32–33 (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights); 667. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 48 Zhonghua Renmin Gongheguo Nongcun Tude Chengbao Fa [P.R.C. Rural Land (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). Contract Law], Presidential Order No. 73, art. 30 (2002). 668. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 41 710. Zhonghua Renmin Gongheguo Nongcun Tude Chengbao Fa [P.R.C. Rural Land (1992). Contract Law], Presidential Order No. 73, arts. 3, 5, 20 (2002) (these bodies include 669. Id. art. 41. rural economic cooperatives, villagers’ committees) (all land belongs to the government 670. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 47 and the right to land is contracted to citizens for 30 to 70 years); Nongcun Funu Tude (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). Chengbaoquan Weiti De Zhidao Fenzi [Rural Women’s Land Succession Rights Policy 671. Supreme People’s Court Judicial Interpretation on the Application of the Analysis], Zhongguo Funu Wang [China Women’s Network], Sept. 17, 2002, http:// Marriage Law of P.R.C. (II), supra note 663, art. 27; Marriage Law of the P.R.C., art. www.china.org.cn/chinese/funv/205567.htm. 42 (2001). 711. Zhonghua Renmin Gongheguo Nongcun Tude Chengbao Fa [P.R.C. Rural Land 672. Marriage Law of the P.R.C., art. 46 (2001). Contract Law], Presidential Order No. 73, art. 6 (2002). 673. Supreme People’s Court Judicial Interpretation on the Application of the 712. Nongcun Funu Tude Chengbaoquan Weiti De Zhidao Fenzi [Rural Women’s Land Marriage Law of P.R.C. (I), supra note 631, arts. 30(1), 31(2); Supreme People’s Court Succession Rights Policy Analysis], Zhongguo Funu Wang [China Women’s Network], Judicial Interpretation on the Application of the Marriage Law of P.R.C. (II), Sept. 17, 2002, http://www.china.org.cn/chinese/funv/205567.htm. supra note 663, art. 27. 713. China’s Human Rights Progress 2003, supra note 410, ch. 5. 674. Supreme People’s Court Judicial Interpretation on the Application of the 714. Id. Marriage Law of P.R.C. (I), supra note 631, art. 29. 715. Xianfa [Constitution], art. 42 (2004). 675. Supreme People’s Court Judicial Interpretation on the Application of the 716. Id. art. 48. Marriage Law of P.R.C. (II), supra note 663, arts. 8–9. 717. Labour Law of the P.R.C., Presidential Order No. 28, art. 46 (1994) (effective Jan. 1, 676. Marriage Law of the P.R.C., art. 47 (2001). 1995). 677. Id. art. 48; Supreme People’s Court Judicial Interpretation on the Application 718. Id. arts. 12–13. of the Marriage Law of P.R.C. (I), supra note 631, art. 32. 719. Id. art. 13 (unsuitable as stipulated by the government). 678. General Principles of the Civil Law of the P.R.C., Presidential Order No. 37, art. 147 720. Id. arts. 13, 59–63. (1986) (effective Jan. 1, 1987). 721. Id. art. 59 (prohibition on work with Grade IV physical labor intensity). 679. Id. art. 148. 722. Jiang Jing Jing, Nuzhigong Weiquan Zhuanxiang Yiju Tuixing, Nuzhigong Yunji Bude 680. Supreme People’s Court of the P.R.C. Judicial Committee, Zuigao Renmin Jiang Gongzi [Promoting Protections of Female Workers Rights, Prohibit Cutting Salary of Fayuan Guanyu Renmin Fayuan Shouli Shenqing Chengren Waiguo Fayuan Pregnant Female Workers], Jin Ling Wan Bao (Nanjing, P.R.C.), Mar. 18, 2005, http:// Lihun Panjue Anjian Youguan Wenti De Guiding [Regulations Concerning the www.china.org.cn/chinese/funv/814908.htm (referring to Nuzhigong Quanyi Baohu Question of Recognition of Foreign Divorces in People’s Courts], arts. 1–3 (1999) Zhuanxiang Xieyi [Nanjing Agreement for the Protection of Female Workers’ Rights (effective Mar. 1, 2000), http://www.court.gov.cn/lawdata/explain/etc/200303200124. and Interests] promulgated by the Nanjing People’s Congress on Dec. 22, 2004). htm. 723. Regulations Concerning Labor Protection of Female Staff and Workers, State 681. Law of the P.R.C. on the Protection of Rights and Interests of Women, arts. 48, 50 Council Order of July 21, 1988, art. 4 (1988); Labour Law of the P.R.C., Presidential (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). Order No. 28, art. 29(3) (1994) (effective Jan. 1, 1995). 682. Marriage Law of the P.R.C., art. 36 (2001). 724. Labour Law of the P.R.C., Presidential Order No. 28, arts. 61, 63 (1994) (effective 683. Id.; Law of the P.R.C. on the Protection of Minors, art. 45 (1991) (effective Jan. 1, Jan. 1, 1995) (prohibition on work with Grade III physical labor intensity). 1992). 725. Id.; Regulations on Labor Protection in Workplaces Where Toxic Substances are 684. Marriage Law of the P.R.C., art. 36 (2001). Used, State Council Order No. 352, art. 63 (2002). 685. Id. art. 30; Supreme People’s Court Judicial Interpretation on the Application 726. Regulations Concerning Labor Protection of Female Staff and Workers, State of the Marriage Law of P.R.C. (I), supra note 631, art. 21. Council Order of July 21, 1988, art. 7 (1988). 686. Marriage Law of the P.R.C., art. 37 (2001). 727. Id. arts. 7, 9. 687. Supreme People’s Court Judicial Interpretation on the Application of the 728. Id. art. 8. Marriage Law of P.R.C. (I), supra note 631, art. 32; Regulations on Legal Aid, State 729. Id. art. 8. Council Standing Committee Order of July 17, 2003, art. 10(4) (2003). 730. Id. art. 8. 688. Marriage Law of the P.R.C., art. 38 (2001). 731. Id. art. 7; E.g. In Nanjing, female workers are entitled to 11 prenatal visits, each 689. Id. art. 38. lasting half a day. Jiang Jing Jing, supra note 722 (referring to Nuzhigong Quanyi Baohu 690. Id. arts. 26, 38. Zhuanxiang Xieyi [Nanjing Agreement for the Protection of Female Workers’ Rights 691. Adoption Law of the P.R.C., art. 4 (1998). and Interests] promulgated by the Nanjing People’s Congress on Dec. 22, 2004). 692. Id. art. 10. 732. Regulations Concerning Labor Protection of Female Staff and Workers, State 693. Id. art. 11. Council Order of July 21, 1988, art. 7 (1988); Jiang Jing Jing, supra note 722 (referring to 694. Id. art. 10. Nuzhigong Quanyi Baohu Zhuanxiang Xieyi [Nanjing Agreement for the Protection of 695. Id. art. 18. Female Workers’ Rights and Interests] promulgated by the Nanjing People’s Congress on 696. Marriage Law of the P.R.C., art. 50 (2001). Dec. 22, 2004). 697. CEDAW Committee, Third and fourth periodic reports of State parties: China, supra note 733. Labour Law of the P.R.C., Presidential Order No. 28, art. 73(5) (1994) (effective Jan. 150, Part II, art. 16(c). 1, 1995). 698. General Principles of the Civil Law of the P.R.C., Presidential Order No. 37, arts. 734. Regulations Concerning Labor Protection of Female Staff and Workers, State 75–76, 105 (1986) (effective Jan. 1, 1987). Council Order of July 21, 1988, art. 11 (1988). 699. Law of the P.R.C. on the Protection of Rights and Interests of Women, arts. 32, 33 735. Jiang Jing Jing, supra note 722 (referring to Nuzhigong Quanyi Baohu Zhuanxiang (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). Xieyi [Nanjing Agreement for the Protection of Female Workers’ Rights and Interests] 700. Id. art. 34–35. promulgated by the Nanjing People’s Congress on Dec. 22, 2004). 701. Law of Succession of the P.R.C., Presidential Order No. 24, art. 9 (1985). 736. Labour Law of the P.R.C., Presidential Order No. 28, art. 95 (1994) (effective Jan. 1, 702. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 34 1995). (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights); Law of 737. Id. arts. 92–93, 95. Succession of the P.R.C., Presidential Order No. 24, art. 10 (1985). 738. Regulations on Labor Protection in Workplaces Where Toxic Substances are Used, 703. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 35 State Council Order No. 352, art. 63 (2002). (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights); Law of 739. Labour Law of the P.R.C., Presidential Order No. 28, arts. 77–84 (1994) (effective Succession of the P.R.C., Presidential Order No. 24, art. 12 (1985). Jan. 1, 1995); Regulations of the P.R.C. on Settlement of Labour Disputes in Enterprises, 704. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 34 arts. 1, 2(1)–(4) (1993). (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). 740. Labour Law of the P.R.C., Presidential Order No. 28, art. 56 (1994) (effective Jan. 1, PAGE 78 WOMEN OF THE WORLD:

1995). Zhonghua Renmin Gongheguo Jianyu Fa [P.R.C. Education Law], Presidential Order 741. Id. arts. 79–80; Regulations of the P.R.C. on Settlement of Labour Disputes in No. 45, art. 57 (1995) (translation by Center for Reproductive Rights); U.N. Commission Enterprises, arts. 6–8 (1993). for Human Rights, Special Rapporteur Report on the Right to Education in China, supra note 742. Regulations of the P.R.C. on Settlement of Labour Disputes in Enterprises, arts. 774, at 8. 12–13, 17 (1993). 776. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 15 (1986). 743. Labour Law of the P.R.C., Presidential Order No. 28, art. 79 (1994) (effective Jan. 1, 777. Id. art. 11; Law of the P.R.C. on the Protection of Minors, art. 9 (1991) (effective 1995); Regulations of the P.R.C. on Settlement of Labour Disputes in Enterprises, art. Jan. 1, 1992). Parents of children or adolescents who postpone enrollment or wish to 6 (1993). be exempt from compulsory schooling must submit an application to the local people’s 744. Law of the P.R.C. on the Protection of Rights and Interests of Women, arts. 22, 24 government for approval. (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). 778. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 11 (1986). 745. Id. art. 23. 779. Id. art. 15. 746. Id. art. 26. 780. Id. art. 11; Law of the P.R.C. on Protection of Minors, arts. 28, 49 (1991) (effective 747. Id. art. 27. Jan. 1, 1992) (illegal to hire minors under age 16, jobs with limited time and intensity 748. Id. art. 27. permitted for 16-18 year olds). 749. Trade Union Law of the P.R.C., art. 4 (2001); Law of the P.R.C. on the Protection of 781. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 15 (1986); Rights and Interests of Women, art. 5 (1992). Law of the P.R.C. on Protection of Minors, art. 49 (1991) (effective Jan. 1, 1992). 750. Id. art. 3. Trade union membership is voluntary and no organization or individual 782. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 15 (1986); may obstruct or restrict workers’ rights to join a trade union. Id. arts. 2–3. Law of the P.R.C. on Protection of Minors, art. 49 (1991) (effective Jan. 1, 1992) (illegal to 751. Id. art. 10. hire minors under age 16). 752. Id. art. 22(4). 783. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 16 (1986). 753. Laodong Baozhang Jiancha Li [Regulation on Labor and Social Security Inspection], 784. Id. art. 5. State Council Order No. 423, arts. 11(3)–(4), 23(1)–(6) (2004) (P.R.C.) (fines of CNY 785. Law of the P.R.C. on the Protection of Rights and Interests of Women, arts. 15–16 1000 to 5000 for each victim) (translation by Center for Reproductive Rights). (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). 754. Law of the P.R.C. on Safety in Mines, Presidential Order No.65, art. 29 (1993). 786. Id. art. 18. 755. Special Issue of the Ninth National Women’s Congress of China, All-China Women’s 787. Id. Federation (ACWF) Newsl. (ACWF, Beijing, P.R.C.), Sept. 2003, http://www. 788. Id. women.org.cn/english/english/newsletter/September.htm (last visited Feb. 16, 2005). 789. Higher Education Law of the P.R.C., Presidential Order No. 8, art. 9 (1998). 756. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 27 790. Zhonghua Renmin Gongheguo Jianyu Fa [P.R.C. Education Law], Presidential (2005) (effective Jan. 2006) (translation by Center for Reproductive Rights). Order No. 45, art. 36 (1995) (translation by Center for Reproductive Rights); See also 757. Fifth and sixth periodic reports of State parties under Article 18 of the Convention on the Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 15 (1986). Elimination of All Forms of Discrimination Against Women: China, Committee on the 791. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 17 (2005) Elimination of Discrimination Against Women, at 49, U.N. Doc. CEDAW/C/CHN/5–6 (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). (2004) [hereinafter CEDAW Committee, Fifth and sixth periodic report of State parties: 792. Id. arts. 19–20. China]. 793. Vocational Education Law of the P.R.C., Presidential Order No. 69, art. 7 (1996); 758. Id. at 49. Law of the P.R.C. on the Protection of Minors, art. 37 (1991) (effective Jan. 1, 1992). 759. Wu Xiaoling, An Innovative and Inspiring Experience--Micro Credit Supported 794. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 21 Poverty Reduction and Women’s Development in China, Address at Forum on Women’s (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). Financial Education 1–2 (Nov. 2, 2004) (Mme. Wu is the Deputy Governor of the 795. China Youth Development Foundation (CYDF), Brochure, http://www.cydf. People’s Bank of China). org.cn/gb/english/cydf.zip (last visited Mar. 17, 2005). 760. CEDAW Committee, Fifth and sixth periodic report of State parties: China, supra note 796 Id. 757, at 49–50. 797. Id.; Project Hope Helps 100,000 Dropouts Return to School, supra note 764. 761. China’s Human Rights Progress 2003, supra note 410, ch. 5. Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). 762. Id. See International Monetary Fund, supra note 197. 763. Id.; NPFPC, Main Achievements, supra note 346. 798. Programme Works to Change the Destiny of the Under Privileged, China Daily, June 08, 764. Project Hope Helps 100,000 Dropouts Return to School, Xinhua News Agency 2004, at 14, http://www.cydf.org.cn/gb/english/new_08_02.htm. (China), Mar. 28, 2005, http://news.xinhuanet.com/english/2005-03/28/content_ 799. Id.; China Youth Development Foundation (CYDF), Brochure, supra note 795. 2753718.htm; Zhang Jianmin, All-China Women’s Federation, Be Concerned with 800. Programme Works to Change the Destiny of the Under Privileged, supra note 798; One year Women, http://www.acyf.org.cn/e_doc/CY/19.htm (last visited June 24, 2005). anniversary of Project Hope’s immigrant workers’ children subsidization program (in 765. Committee on Economic, Social and Cultural Rights, Initial report of State parties: Chinese), CYDF Newsletter No. 2 (March 2, 2005), available at http://www.cydf.org. China, supra note 171, at 10–11. cn/gb/tongxun/database/showfocus.asp?newsid=3467 (last visited Mar. 17, 2005). 766. United Nations Educational, Scientific and Cultural Organization 801. All-China Youth Federation (ACYF), China Youth Policy and Youth Work, (UNESCO) & United Nations Development Programme (UNDP), Assessment supra note 146. of Resources, Best Practices, Gaps in Gender, Science, & Technology in People’s 802. All-China Youth Federation (ACYF), Project Hope Launches Scheme Republic of China 21 (2001), http://www.unesco.or.id/apgest/pdf/china/03-report- of Study Aid for Urban Migration (Jan. 2004), http://www.acyf.org.cn/e_ china.pdf. info/200401/07.htm. 767. Xianfa [Constitution], art. 46 (2004). 803. Parker, supra note 552. 768. Id. art. 49. 804. Id. 769. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 5 (1986); 805. Zhang Jianmin, supra note 764. Zhonghua Renmin Gongheguo Jianyu Fa [P.R.C. Education Law], Presidential Order 806. Id. No. 45, art. 9 (1995) (translation by Center for Reproductive Rights). 807. Id. 770. Compulsory Education Law of the P.R.C., Presidential Order No. 38, arts. 2, 5, 7 808. Fang-fu Ruan & M.P. Lau, China, in 1 The International Encyclopedia of (1986); Zhonghua Renmin Gongheguo Jianyu Fa [P.R.C. Education Law], Presidential Sexuality 344, 344–399 (Robert T. Francoeur, ed., 1997), www2.rz.hu-berlin.de/ Order No. 45, art. 18 (1995) (translation by Center for Reproductive Rights). sexology/gesund/archiv/ies/china.htm; Ying Li et al., Needs and Preferences Regarding Sex 771. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 7 (1986). Education Among Chinese College Students: A Preliminary Study, 30 Int’l Family Planning 772. Id. art. 10 (1986); Zhonghua Renmin Gongheguo Jianyu Fa [P.R.C. Education Perspectives 128, 128–129 (2004), http://www.agi-usa.org/pubs/journals/3012804.pdf. Law], Presidential Order No. 45, art. 74 (1995) (translation by Center for Reproductive 809. Fang-fu Ruan & M.P. Lau, supra note 808. Rights). 810. Id.; Ying Li et al., supra note 808, at 128–129. 773. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 5 (1986); 811. Ying Li et al., supra note 808, at 129; Students Find Sex Education Inadequate, China Zhonghua Renmin Gongheguo Jianyu Fa [P.R.C. Education Law], Presidential Order Daily, Apr. 22, 2004, http://www.china.org.cn/english/China/93721.htm. No. 45, art. 56 (1995) (translation by Center for Reproductive Rights). 812. Population and Family Planning Law of the P.R.C, Presidential Order No. 63, art. 13 774. Economic, Social and Cultural Rights, The Right to Education, Report submitted by the Special (2001) (effective Sept. 1, 2002). Rappoteur, Katarina Tomasevski, Addendum: Mission to China, U.N. Commission for Human 813. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 17 (2005) Rights, 16th Sess., Provisional Agenda Item 10, at 8, U.N. Doc. E/CN.4/2004/45/Add.1 (effective Jan. 2006) (translation by Center for Reproductive Rights). (2003) (figures differentiate between budgetary funds and four other sources: (1) funds 814. Law of the P.R.C. on the Protection of Minors, art. 13 (1991) (effective Jan 1, 1992). of social organizations and citizens, (2) donations and fund-raising, (3) tuition and 815. Fang-fu Rang & M.P. Lau, supra note 808. other fees, and (4) unspecified “other educational funds”) (referring to statistics from the 816. Id. (referring to findings from the Zhongguo Dangdai Xingivenhua - Zhongguo Department of Development & Planning, Ministry of Education, Educational Statistics Lian-wanii “Xingwenming” Diaoza Baogao [Sexual Behavior in Modern China - A Yearbook of China, 2001, at 366 (2002)) [hereinafter U.N. Commission for Human Report of the Nationwide “Sex Civilization” Survey on 20,000 Subjects in China] which Rights, Special Rapporteur Report on the Right to Education in China]. was conducted without any government interference.). 775. Compulsory Education Law of the P.R.C., Presidential Order No. 38, art. 12 (1986); 817. Id. (for example, information on sexual positions and nude illustrations were banned CHINA PAGE 79

from textbooks). 856. Female Teacher wins Sexual Harassment Law Suit, supra note 855; Li Weiwei et al., supra 818. Id.; Ying Li et al., supra note 808, at 128 (study showed that 47% of students at a large note 855; Protect Women from Sexual Harassment, supra note 854. Chinese university had received no school-based education on sexual behavior before 857. Protect Women from Sexual Harassment, supra note 854. college); Students Find Sex Education Inadequate, supra note 811. 858. Id.; China Amends Law to Ban Sexual Harassment, Xinhua News Agency (China), 819. Yufang Aibibingke Zhongxue Bixu Xiu [HIV/AIDS Prevention Classes Mandatory for June 27, 2005, http://en.chinacourt.org/public/detail.php?id=3905; Li Weiwei et High School Students], Jiankang Bu [Health News] (China), Feb. 28, 2005, http://www. al., supra note 855 (according to the NPC Standing Committee, less than ten sexual nwccw.gov.cn/show/showxwbdNews.jsp?belong=%E6%96%B0%E9%97%BB%E6%8 harassment cases have been brought before the court since 2001) (translation by Center A%A5%E9%81%93&alias=xwbd_xwbdd&news_id=3572. for Reproductive Rights). 820. Jiaoyu Zhidaowang Yao Chutai Liaojie Biyunfa Chang Zhongxuesheng “Biyaoke” 859. Regulation on Administrative Penalties for Public Security, Presidential Order No. [Education Plan Released, Understanding Contraceptive Methods Becomes Mandatory for 43, art. 30 (1986) (effective Jan. 1, 1987); Decision of the Standing Committee of the High School Students], Xin Wen Chen Bu [Morning News] (China), Mar. 15, 2005, National people’s Congress on the Strict Prohibition Against Prostitution and Whoring, http://sh.news.sina.com.cn/20050315/090248480.shtml; HIV/AIDS Prevention Classes art. 4 (1992). Mandatory for High School Students, supra note 819. 860. Regulation on Administrative Penalties for Public Security, Presidential Order 821. Tan Yingzi, Sex-ed Text Ready for Use in Classes, China Daily, Sept. 7, 2004, http:// No. 43, art. 30 (1986) (effective Jan. 1, 1987); Maiyin Piaochang Renyuan Shourong www.chinadaily.com.cn/english/doc/2004-09/07/content_372336.htm. Jiaoyu Banfa [Measures on Re-Education through Labor for Prostitutes and Patrons of 822. China Issues First Sex Education VCD Series, Xinhua News Agency (China), Mar. 3, Prostitutes], State Council Order No. 127, art. 9 (1993) (persons subject to re-education 2003, http://www.china.org.cn/english/culture/57172.htm; First Sex Education VCD for through labor are held at re-education centers and given compulsory education in law Youngsters Released, Xinhua News Agency (China), May 31, 2002, http://www.china. and morality and/or productive labor) (translation by Center for Reproductive Rights); org.cn/english/LI-e/33619.htm. Decision of the Standing Committee of the National People’s Congress on the Strict 823. Li Cao, Students to be Lectured on Drugs, AIDS and Sex, China Daily, Dec. 30, 2004, Prohibition Against Prostitution and Whoring, art. 4 (1991) (effective Sept. 4, 1992); http://www.chinadaily.com.cn/english/doc/2004-12/30/content_404773.htm. Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). 824. Id. See International Monetary Fund, supra note 197. 825. Id. 861. Decision of the Standing Committee of the National People’s Congress on the Strict 826. Criminal Law of the P.R.C., art. 236 (1997), amended by Presidential Order No. 32 Prohibition Against Prostitution and Whoring, art. 4 (1991) (effective Sept. 4, 1992); (2005). Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). 827. Id. art. 236. See International Monetary Fund, supra note 197. 828. Id. art. 236. 862. Maiyin Piaochang Renyuan Shourong Jiaoyu Banfa [Measures on Re-Education 829. Id. art. 17. through Labor for Prostitutes and Patrons of Prostitutes], State Council Order No. 830. Id. art. 17. 127, arts. 10–11 (1993) (translation by Center for Reproductive Rights); Decision of the 831. Id. art. 237. Standing Committee of the National People’s Congress on the Strict Prohibition Against 832. Id. art. 237. Criminal Detention is executed by the local public security organ and Prostitution and Whoring, art. 4 (1991) (effective Sept. 4, 1992). lasts up to 6 months. Id. arts. 42–43. 863. Criminal Law of the P.R.C., art. 360 (1997), amended by Presidential Order No. 32 833. Id. art. 237. (2005); Decision of the Standing Committee of the National People’s Congress on the 834. Id. art. 237. Strict Prohibition Against Prostitution and Whoring, art. 5 (1991) (effective Sept. 4, 1992). 835. Id. art. 20. Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). 836. Rangita de Silva-de Alwis, Remarks to the U.S. Congressional Executive See International Monetary Fund, supra note 197. Commission on China (Feb. 24, 2003) (transcript available at http://www.cecc. 864. Criminal Law of the P.R.C., arts. 358–359 (1997), amended by Presidential Order gov/pages/roundtables/022403/silva.php) (Referencing The Center for Women’s Law No. 32 (2005); Decision of the Standing Committee of the National People’s Congress Studies and Legal Services of Peking University, Theory and Practice of Protection of on the Strict Prohibition Against Prostitution and Whoring, arts. 1–3 (1991) (effective Women’s Rights and Interests in Contemporary China, Investigation and Study on the Sept. 4, 1992). Enforcement of the U.N. CEDAW in China 468). 865. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 41 837. Marriage Law of the P.R.C., art. 7 (2001). (2005) (effective Jan. 2006) (translation by Center for Reproductive Rights). 838. Marriage Law to Better Protect Women and Children, China Daily, Apr. 30, 2001, 866. Criminal Law of the P.R.C., arts. 358–359 (1997), amended by Presidential Order No. http://www.china.org.cn/english/12157.htm. 32 (2005); Decision of the Standing Committee of the National People’s Congress on 839. As of May 2002, ten provinces have enacted local laws and regulations to ban the Strict Prohibition Against Prostitution and Whoring, arts. 1–3 (1991) (effective Sept. domestic violence. China Says “No” to Domestic Violence, Xinhua News Agency (China), 4, 1992); Calculations based on exchange rate of 1 U.S. Dollar (USD) to 8.2765 CNY July 25, 2002, http://en.chinacourt.org/public/detail.php?id=563. (renmenbi). See International Monetary Fund, supra note 197. 840. Xianfa [Constitution], art. 49 (2004); Marriage Law of the P.R.C., art. 43 (2001). 867. Criminal Law of the P.R.C., art. 358 (1997), amended by Presidential Order No. 32 841. Criminal Law of the P.R.C., art. 260 (1997), amended by Presidential Order No. (2005); Decision of the Standing Committee of the National People’s Congress on the 32 (2005). The crime of maltreating a family member “shall be handled only upon Strict Prohibition Against Prostitution and Whoring, art. 2 (1991) (effective Sept. 4, 1992). complaint.” This stipulation is irrelevant if the victim is seriously injured or killed. Id. 868. Decision of the Standing Committee of the National People’s Congress on the 842. Id. This type of monitoring is known as “public surveillance” which lasts from 3 Strict Prohibition Against Prostitution and Whoring, art. 6 (1991) (effective Sept. 4, months to 2 years during which the individual is under observation of the police, must 1992); Criminal Law of the P.R.C., art. 361 (1997), amended by Presidential Order No. 32 report his activities to the police, cannot leave or change his residing city or county (2005). If the violator is in a leadership position of the work place, they are given harsher without approval and has limited rights. Id. art. 38–39. punishment. Id. 843. Supreme People’s Court Judicial Interpretation on the Application of the 869. Decision of the Standing Committee of the National People’s Congress on the Strict Marriage Law of P.R.C. (I), supra note 631, art. 1 (referring to the meaning of domestic Prohibition Against Prostitution and Whoring, art. 7 (1991) (effective Sept. 4, 1992). violence under arts. 3, 32, 43, 45 and 46 of the Marriage Law). 870. Criminal Law of the P.R.C., arts. 310, 362 (1997), amended by Presidential Order No. 844. Marriage Law of the P.R.C., art. 43 (2001). 32 (2005); Decision of the Standing Committee of the National People’s Congress on the 845. Id. art. 43. Strict Prohibition Against Prostitution and Whoring, art. 7 (1991) (effective Sept. 4, 1992). 846. Id. arts. 32(2), 46. 871. Decision of the Standing Committee of the National People’s Congress on the Strict 847. Id. art. 45. Prohibition Against Prostitution and Whoring, art. 10 (1991) (effective Sept. 4, 1992). 848. Id. art. 45. 872. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 39 849. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 46 (2005) (effective Jan. 1, 2006) (translation by Center for Reproductive Rights). (2005) (effective Jan. 2006) (translation by Center for Reproductive Rights). 873. Id. 850. Id. 874. Decision of the Standing Committee of the National People’s Congress Regarding 851. All-China Women’s Federation (ACWF), What’s New (Mar. 2003), http:// the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap Women www.women.org.cn/english/english/whatisnws/2003-3.htm (last visited Apr. 22, or Children, Presidential Order No. 52 (1991) (provisions on criminal liability were 2005); China Says “No” to Domestic Violence, supra note 839. incorporated into the Criminal Law in 1997 while administrative penalties and 852. Law of the P.R.C. on the Protection of Rights and Interests of Women, art. 40 administrative measures of the Decision continue to be in force). (2005) (effective Jan. 2006) (translation by Center for Reproductive Rights). 875. Id. art. 1; Abducting and Trafficking in a women or child refers to the acts of 853. Id. abducting, kidnapping, buying, trafficking in, fetching, sending, or transferring a woman 854. Protect Women from Sexual Harassment, People’s Daily, Nov. 11, 2003, http://english. or child, for the purpose of selling the victim. Criminal Law of the P.R.C., art. 240 peopledaily.com.cn/200311/11/print20031111_128030.html. (1997), amended by Presidential Order No. 32 (2005). Calculations based on exchange rate 855. Female Teacher wins Sexual Harassment Law Suit, Xinhua News Agency (China), of 1 U.S. Dollar (USD) to 8.2765 CNY (renmenbi). See International Monetary Fund, June 22, 2003, http://en.chinacourt.org/public/detail.php?id=2743; Li Weiwei et al., supra note 197. WoGuo Lifa De Xingsaorao Shuo Bu Yongren Danwei You Ze Fangzhi [Country Enacts 876. Criminal Law of the P.R.C., arts. 239–240 (1997), amended by Presidential Order Statute to Prohibit Sexual Harassment, Employing Units responsible to Prevent], Xinhua No. 32 (2005); Decision of the Standing Committee of the National People’s Congress News Agency (China), June 26, 2005, http://www.legalinfo.gov.cn/zfsf/2005-06/27/ Regarding the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap content_160084.htm (translation by Center for Reproductive Rights). Women or Children, Presidential Order No. 52, arts. 1–2 (1991). PAGE 80 WOMEN OF THE WORLD:

877. Criminal Law of the P.R.C., art. 241 (1997), amended by Presidential Order No. 32 (2005); Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap Women or Children, Presidential Order No. 52, art. 3 (1991). 878. Criminal Law of the P.R.C., arts. 236, 240–241 (1997), amended by Presidential Order No. 32 (2005); Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap Women or Children, Presidential Order No. 52, art. 3 (1991). 879. Criminal Law of the P.R.C., art. 241 (1997), amended by Presidential Order No. 32 (2005); Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap Women or Children, Presidential Order No. 52, art. 3, ¶ 6 (1991). 880. Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap Women or Children, Presidential Order No. 52, art. 5 (1991). 881. Criminal Law of the P.R.C., arts. 242, 277 (1997), amended by Presidential Order No. 32 (2005). 882. Office to Monitor and Combat Trafficking in Persons, U.S. Department of State, Trafficking in Persons Report, Country Narratives: P.R.C. (2004), http:// www.state.gov/g/tip/rls/tiprpt/2004/33191.htm (Released June 14, 2004). 883. China’s Human Rights Progress 2003, supra note 410, ch. 5. 884. China, UNICEF Join Hands to Protect Girls, Xinhua News Agency (China), June 2, 2004, http://www.china.org.cn/english/China/97138.htm. 885. Program to Cut Human Trafficking, China Daily, Sept. 25, 2002, http://www.china. org.cn/english/China/44085.htm. 886. Parker, supra note 552. 887. Id. 888. Project Helps Prevent Human Trafficking, China Daily, Nov. 4, 2002, http://www. china.org.cn/english/2002/Nov/47767.htm. 889. Criminal Law of the P.R.C., art. 237 (1997), amended by Presidential Order No. 32 (2005). 890. Id. art. 236. 891. Id. 892. Id. 893. Id. art. 240. LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 81 2. Malaysia

Statistics

GENERAL Population

■ Total population (millions): 25.3.1

■ Population by sex (thousands): 12,251.4 (female) and 12,625.0 (male).2

■ Percentage of population aged 0–14: 33.3.3

■ Percentage of population aged 15–24: 18.2.4

■ Percentage of population in rural areas: 36.5 Economy

■ Annual percentage growth of gross domestic product (GDP): 6.2.6

■ Gross national income per capita: USD 3,780.7

■ Government expenditure on health: 2% of GDP.8

■ Government expenditure on education: 4.1% of GDP.9

■ Percentage of population below the poverty line: Information unavailable.

WOMEN’S STATUS

■ Life expectancy: 76.0 (female) and 71.4 (male).10

■ Average age at marriage: 23.5 (female) and 26.6 (male).11

■ Labor force participation: 39.4 (female) and 35.7 (male).12

■ Percentage of employed women in agricultural labor force: Information unavailable.

■ Percentage of women among administrative and managerial workers: 23.13

■ Literacy rate among population aged 15 and older: 87% (female) and 93% (male).14

■ Percentage of female-headed households: 18.15

■ Percentage of seats held by women in national government: 10.16

■ Percentage of parliamentary seats occupied by women (2005): 9.17

CONTRACEPTION

■ Total fertility rate: 2.78.18

■ Contraceptive prevalence rate among married women aged 15–49: 55% (any method) and 30% (modern method).19

■ Prevalence of sterilization among couples: 6.8% (total); Gender breakdown unavailable.20

■ Sterilization as a percentage of overall contraceptive prevalence: 14.1.21

MATERNAL HEALTH

■ Lifetime risk of maternal death: 1 in 630 women.22

■ Maternal mortality ratio per 100,000 live births: 41.23

■ Percentage of pregnant women with anemia: 56.24

■ Percentage of births monitored by trained attendants: 97.25 PAGE 82 WOMEN OF THE WORLD:

ABORTION

■ Total number of abortions per year: Information unavailable.

■ Annual number of hospitalizations for abortion-related complications: Information unavailable.

■ Rate of abortion per 1,000 women aged 15–44: Information unavailable.

■ Breakdown by age of women obtaining abortions: 10.2% (under 20); 22.3% (age 20–24); 25.0% (age 25–29); 14.2% (age 30–34); 12.2% (age 35–39); 16.2% (40 or older).26

■ Percentage of abortions that are obtained by married women: 91.2.27

SEXUALLY TRANSMISSIBLE INFECTIONS (STIS) AND HIV/AIDS

■ Number of people living with sexually transmissible infections: Information unavailable.

■ Number of people living with HIV/AIDS: 52,000.28

■ Percentage of people aged 15–49 living with HIV/AIDS: 0.1 (female) and 0.7 (male).29

■ Estimated number of deaths due to AIDS: 2,000.30

CHILDREN AND ADOLESCENTS

■ Infant mortality rate per 1,000 live births: 10.31

■ Under ﬁve mortality rate per 1,000 live births: 11 (female) and 15 (male).32

■ Gross primary school enrollment ratio: 93% (female) and 93% (male).33

■ Primary school completion rate: 87% (female) and 87% (male).34

■ Number of births per 1,000 women aged 15–19: 18.35

■ Contraceptive prevalence rates among married female adolescents: Information unavailable.

■ Percentage of abortions that are obtained by women younger than age 20: 10.2.36

■ Number of children under the age of 15 living with HIV/AIDS: Information unavailable. MALAYSIA PAGE 83

ENDNOTES

1. See United Nations Population Fund (UNFPA), The State of World Popula- tion 2005, at 112 (estimate for 2005). 2. See United Nations Population Fund (UNFPA), Country Profiles for Popu- lation and Reproductive Health: Policy Developments and Indicators 2003 (2003), http://www.unfpa.org/profile/default.cfm. [hereinafter UNFPA, Country Profiles ] 3. See The World Bank, World Development Indicators 2004, at 39 (2004), http:// www.worldbank.org/data/ (estimate for 2002). [hereinafter The World Bank]. 4. See UNFPA, Country Profiles, supra note 2. 5. See UNFPA, The State of World Population 2005, supra note 1, at 112. 6. See The World Bank, supra note 3, at 183 (estimate for 1990-2002). 7. See The World Bank, World Development Indicators 2004: Data Query, http://devdata.worldbank.org/data-query/ (statistical figure obtained through the Atlas method) (estimate for 2003). 8. See UNFPA, The State of World Population 2005, supra note 1, at 112. 9. United Nations CyberSchoolBus, InfoNation: Government Education Expenditure (2004), http://www.un.org/Pubs/CyberSchoolBus/infonation/e_info- nation.htm (estimate for 1997). 10. See UNFPA, The State of World Population 2005, supra note 1, at 108. 11. See UNFPA, Country Profiles, supra note 2. 12. See Id. 13. See Social and Demographic Statistics Branch, United Nations Statistics Division, The World’s Women 2000: Trends and Statistics (2000) (estimate for 2003). 14. See UNFPA, Country Profiles, supra note 2. 15. See Social and Demographic Statistics Branch, supra note 13, at 48 (estimate for 1991/1997). 16. See Save the Children, State of World’s Mothers 2004, at 38 (2004), http:// www.savethechildren.org/mothers/report_2004/images/pdf/SOWM_2004_final.pdf (estimate for 2004). 17. See United Nations Statistics Division, Millennium Indicators Database (2005), http://unstats.un.org/unsd/mi/mi_series_results.asp?rowId=557 (last updated Mar. 16, 2005) (estimate for 2005). 18. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimate for 2000-2005). 19. See Id. at 108. 20. See Engenderhealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002) (estimates for 1988). 21. See Id. at tbl. Supp. 2.5, at 56. 22. See World Health Organization et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA) 44 (2000) (estimate for 1995). 23. See UNFPA, The State of World Population 2005, supra note 1, at 108. 24. See Save the Children, supra note 16, at 38 (estimate for 1989-2000). 25. See UNFPA, The State of World Population 2005, supra note 1, at 112. 26. See Akinrinola Bankole et al., Characteristics of Women who Obtain Induced Abortion: A Worldwide Review, 25 Int’l Fam. Planning Persp. 68–77 (1999), http://www.guttmacher.org/pubs/journals/2506899.html (statistical figure obtained through ad hoc surveys and hospital records) (estimates for 1981). 27. See Id. 28. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., UNAIDS/World Health Organization (WHO) Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections – 2004 Update: Vietnam 3 (2004), http://www.who.int/GlobalAtlas/PDFFactory/HIV/EFS_PDFs/EFS2004_ MY.pdf (estimates for 2003). 29. See UNFPA, The State of World Population 2005, supra note 1, at 108. 30. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., supra note 28 (estimates for 2003). 31. See UNFPA, The State of World Population 2005, supra note 1, at 108. 32. See UNFPA, Country Profiles, supra note 2. 33. See UNFPA, The State of World Population 2005, supra note 1, at 108. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 34. See Id. 35. See Id. 36. See Bankole et al., supra note 26. PAGE 84 WOMEN OF THE WORLD:

alaysia lies in the heart of central Southeast Asia; Pen- insular Malaysia (directly south of Thailand) and East I. Setting the Stage: M Malaysia (the northern third of the island of Borneo) The Legal and Political are separated by approximately 400 miles of the South Chi- na Sea.1 Framework of Malaysia The Malays were ruled by the Buddhist kingdom of Fundamental rights are rooted in a nation’s legal and political Srivijaya from the ninth through the thirteenth centuries, framework, as established by its constitution. The principles and by the Hindu kingdom of Majapahit in the fourteenth and goals enshrined in a constitution, along with the pro- century; they were converted to Islam with the rise of the cesses it prescribes for advancing them, determine the extent state of Malacca in the fifteenth century.2 With its strategic to which these basic rights are enjoyed and protected. A con- maritime location along the Pacific trade routes, Malaysia stitution that upholds equality, liberty, and social justice can was the target of conquest first by the Portuguese empire in provide a sound basis for the realization of women’s human 1511, then by the Dutch empire in 1641, and by the British rights, including their reproductive rights. Likewise, a politi- empire in 1795.3 British colonial rule lasted well into the cal system committed to democracy and the rule of law is twentieth century, although it was temporarily interrupted critical to establishing an environment for advancing these by the Japanese occupation in 1942–1945 during World War rights. The following section outlines important aspects of II.4 In 1957, Malaysia negotiated independence from Britain, Malaysia’s legal and political framework. and joined the former British colonies of Singapore (an island located just to the south of Peninsular Malaysia) and Sabah A. THE STRUCTURE OF NATIONAL GOVERNMENT and Sarawak (territories in the northern third of the island of The Federal Constitution of Malaysia, enacted in 1957 and Borneo) in 1963 to form the Federation of Malaysia.5 Singa- amended in 1963, establishes Malaysia as a constitutional mon- pore subsequently withdrew from the federation in 1965 to archy and a federal parliamentary democracy with a separa- become an independent state.6 In 2003, Abdullah Badawai tion of powers between the executive, legislative, and judicial succeeded Mahathir Mohamed as prime minister and ini- branches of government.19 The federal constitution states that tiated a series of changes, including stricter policies against Islam is the religion of Malaysia, but other religions may also corruption in the public sector (i.e., among police and gov- be practiced.20 It provides for a division of powers between ernment officials); greater judicial independence; and a more federal and state authorities.21 moderate and progressive interpretation of Islam (Hadhari) Executive branch that emphasizes religious tolerance.7 Executive power is vested in the Yang di-Pertuan Agong Malaysia has one of the more prosperous economies in the (the king), who is the supreme head of the federation and region. Despite a brief recession during the Asian financial commander of the armed forces.22 The consort of the Yang crisis in 1998,8 Malaysia’s economy once again boasts a robust di-Pertuan Agong, known as the Raja Permaisuri Agong growth rate.9 (queen of Malaysia), comes after the Yang di-Pertuan Agong The total population of Malaysia is over 26 million,10 in the hierarchy of the federation.23 The Yang di-Pertuan approximately half (49.4%) of whom are female.11 Eth- Agong is elected by the Majlis Raja-Raja (Conference of Rul- nic groups include, among others, Malays (50.3%), Chinese ers), a body made up of the state rulers (sultans) and state (23.8%), non-Malay indigenous peoples (11.0%), and Indians Yang di-Pertua Negeri (governors), for a term of five years.24 (7.1%).12 The official language is Bahasa Melayu (Malay), In the event of vacancy or inability to serve in the office of although English, various Chinese dialects, Tamil, Telugu, the Yang di-Pertuan Agong, the Timbalan Yang di-Pertuan Malayalam, Punjabi, Thai, and several indigenous languages Agong (deputy supreme head) assumes the position.25 The are also spoken.13 Islam, the national religion,14 is practiced by Yang di-Pertuan Agong has sole discretion in appointing a about 60% of the population;15 other faiths include Buddhism, Perdana Menteri (prime minister) from among members of Taoism, Hinduism, Christianity, Sikhism, and Shamanism.16 the majority party in the House of Representatives.26 The Malaysia has been a member of the United Nations Perdana Menteri advises the Yang di-Pertuan Agong in selec- since 1957.17 It is a member of the Commonwealth of tion of the Jemaah Menteri (Cabinet of Ministers) from Nations, the Organization of the Islamic Conference, the among members of either house in Majlis (Parliament), and Non-Aligned Movement, Asia-Pacific Economic Coop- presides over this body.27 The Jemaah Menteri advises the eration, the World Trade Organization, and the Associa- Yang di-Pertuan Agong in the exercise of his functions and is tion of Southeast Asian Nations.18 collectively responsible to Parliament.28 MALAYSIA PAGE 85

Among other powers, the Yang di-Pertuan Agong may for a Federal Court (Mahkamah Agung, or Supreme Court), convene, prorogue, or dissolve the Parliament,29 and grant a Court of Appeal, a Special Court, two High Courts (one pardons, reprieves, and respites for offenses that are tried by in Peninsular Malaysia and one in Sabah and Sarawak), and courts-martial, in Syariah courts (courts that apply Muslim lower courts as decreed by federal laws.46 There is also a sepa- law), or are committed in the Federal Territories (Kuala Lum- rate system of Syariah courts at the state level. pur, Labuan, and Putrajaya).30 The Yang di-Pertuan Agong is The Federal Court is the highest judicial authority and not liable to judicial proceedings in regular courts of law.31 the final court of appeal.47 It has original jurisdiction over Legislative branch constitutional matters,48 disputes between states or between Majlis (Parliament) consists of two houses—the Dewan the federal government and a state,49 and appellate jurisdiction Rakyat (House of Representatives) and the Dewan Negara over the Court of Appeal and the two High Courts.50 The (Senate).32 The Dewan Rakyat, the lower house, has 219 Federal Court is headed by the chief justice51 and consists of elected members serving five-year terms,33 of whom about the president of the Court of Appeal, two chief justices from 10% are women.34 The Dewan Negara, the upper house, each High Court, and seven other judges.52 Judges serve until consists of 26 members who are elected by the state Legis- the age of 65.53 lative Assemblies (two per state), and 44 members who are The Court of Appeal consists of a president and 15 judg- appointed by the king.35 In 2004, women comprised about es54 and serves as the “final court of appeal” for decisions 35% of the Dewan Negara.36 Senate members serve no more of the High Court on civil and criminal matters.55 Of the than two consecutive three-year terms.37 two High Courts, the one in Peninsular Malaysia consists The Majlis has the authority to make laws for the whole or of a chief judge and 47 judges, and the other in Sabah and part of the federation.38 Bills may originate in either house, Sarawak consists of a chief judge and ten judges.56 High with the exception of money bills, which must originate in Courts hear appeals from lower courts57 and also have origi- the lower house.39 Once a bill passes in the originating house, nal jurisdiction over serious felonies and major civil cases.58 it is sent to the other house for approval.40 Bills passed by both Judges of the Federal Court, the Court of Appeal, and the houses are presented to the king; they then may pass into law High Courts are appointed by the Yang di-Pertuan Agong either upon his approval or by his failure to act on the bill for on the advice of the Perdana Menteri in consultation with 30 days.41 The king may also object to the bill within 30 days the Majlis Raja-Raja.59 and remand it to the originating house, where the process The Special Court was established pursuant to an amend- begins again.42 ment to the federal constitution in 1993, and has exclusive The federal constitution provides for “legislative lists” enu- jurisdiction over civil and criminal actions against the Yang merating the scope of federal, state, and concurrent legislative di-Pertuan Agong or any of the nine state rulers.60 The court powers. Matters exclusive to the federal legislature include is chaired by the chief justice of the Federal Court, the chief external affairs (international treaties and their implementa- judges of the two High Courts, and two appointees by the tion); civil and criminal law and the administration of justice Majlis Raja-Raja.61 Decisions of the Special Court are final (under the federal constitution and all courts except Syariah and cannot be challenged in any court for any reason.62 courts, and the ascertainment of Islamic law and other personal Below these are subordinate courts consisting of the Ses- laws for purposes of federal law); citizenship and naturalization; sions Courts and the Magistrates’ Courts, which are courts of surveys, record keeping (registration of births and deaths; reg- first instance for criminal and civil cases.63 In 2001, a Court istration of marriages; registration of adoptions), and research for Children was established for adjudicating criminal pro- (censuses and vital statistics registration); education; medicine ceedings of persons under the age of 18 years.64 and health (health facilities and maternal and child welfare); The federal constitution provides for a system of labor and social security (health insurance, pensions, and mater- Syariah courts with exclusive jurisdiction over the applica- nity benefits); and the welfare of indigenous peoples.43 The tion of Islamic laws for Muslims.65 Syariah courts exist in federal legislature shares concurrent jurisdiction with states in all states within Malaysia;66 their makeup, organization, and matters of social welfare; social services in accordance with fed- procedures are determined solely by the states.67 Such courts eral and state legislative lists; protection of women and children; have jurisdiction over family matters relevant to succession and public health, sanitation, and disease prevention.44 and wills; marriage (including betrothals and dowries) and Judicial branch divorce; child and spousal maintenance; custody, guardian- The Malaysian judicial system is based upon the English ship, and adoption; matrimonial property and trusts (gifts); model of common law.45 The federal constitution provides and certain matrimonial and religious criminal offenses, such PAGE 86 WOMEN OF THE WORLD:

as polygamy, illicit sex (i.e., incest and sodomy), indecent dress C. THE ROLE OF CIVIL SOCIETY AND and behavior, violations of the pillars of Islam, and apostasy.68 NONGOVERNMENTAL ORGANIZATIONS (NGOS) Such courts do not have jurisdiction in criminal matters, Nonprofit organizations in Malaysia are governed by the which belong solely to federal courts.69 Societies Act 1966, the Societies Regulations 1984, and the Islamic law falls under the purview of the states and, thus, Societies (Application for Vesting Order) Regulations 1993, as the power to enact legislation pertaining to Islam and the implemented and enforced by the Registry of Societies under well-being of Muslims falls under the state authorities.70 Each the Ministry of Home Affairs, which has the primary task state has its own set of Islamic laws as well as its own Islamic of registering NGOs.87 In 1998, 29,574 societies were regis- court system.71 Under this feature of Malaysian Islamic law, tered,88 including religious groups, clubs, charities, political which is unique among Muslim countries, states differ in their parties, mutual benefit societies, and advocacy groups.89 enforcement and interpretations of Muslim law. Consequent- NGOs may receive government funds or incentives to ly, the decision of one state’s Syariah court is not enforceable provide public services. In the national budget for 2005, RM in another.72 In addition, Syariah law does not apply to non- 141.6 million (USD 37,269,000) was appropriated to finance Muslims,73 and a court order issued by a Syariah court is not various NGO activities in AIDS prevention, women and fam- enforceable by a civil court.74 ily development, health programs, and services for the dis- Other state-level courts are native courts, which exist in abled.90 Furthermore, the government provided RM 66.7 Sabah and Sarawak.75 They have jurisdiction only in cases million (USD 17,555,000) for upgrading and maintaining arising from indigenous or customary law, and where the par- institutions run by NGOs that offer social services to families, ties are indigenous peoples.76 children, the elderly, and the disabled.91

B. THE STRUCTURE OF LOCAL GOVERNMENTS D. SOURCES OF LAW AND POLICY The Federation of Malaysia comprises 13 states and the fed- Domestic sources eral territories of Kuala Lumpur, Labuan, and Putrajaya.77 Sources of domestic law include the federal and state consti- The three Federal Territories are centrally administrated by tutions, federal and state legislation and regulations, case law, the federal government. Nine of the 13 Malaysian states are Syariah (Islamic) and Hindu personal laws, adat (customary headed by hereditary Islamic rulers, while the remaining law applicable to Malays), English common law, and numer- four—Malacca, Penang, Sabah, and Sarawak—are headed by ous government policies, such as the Eighth Malaysia Plan.92 Yang di-Pertua Negeri (governors), who are appointed by the The federal constitution is the supreme law of Malaysia.93 Yang di-Pertuan Agong for four-year terms.78 The ruler of It guarantees a number of fundamental rights, including pro- each state acts in accordance with the advice of the Executive tection from arbitrary deprivation of life or liberty;94 freedom Council, which is made up of four to eight members from from slavery and all forms of forced labor;95 equality before the state’s legislative body, called the Legislative Assembly, and the law and equal protection of the law;96 freedom of reli- is directly accountable to that body.79 The ruler appoints a gion, subject to permissible restrictions on the propagation Menteri Besar (chief executive) from among the members of Islam;97 and protection against the deprivation of property of the majority in the state Legislative Assembly to preside except in accordance with the law.98 over the Council and advise on the appointment of its mem- The federal constitution was amended in 2001 to include bers.80 gender-based discrimination among the prohibited types of The legislature at the state level consists of the ruler or discrimination.99 The revised article provides that “there shall the governor and the Legislative Assembly.81 Members are be no discrimination against citizens on the ground only of elected for ﬁve-year terms, at the end of which the entire body religion, race, descent, place of birth, or gender … in any law dissolves, unless the ruler dissolves it sooner.82 The number relating to the acquisition, holding or disposition of property, of members of each Legislative Assembly is determined by or the establishment or carrying on of any trade, business, law.83 In 2004, about 5% of the state legislature members profession, vocation, employment, or in public education.”100 were women.84 As enumerated in the federal constitution, The nondiscrimination article, however, does not extend to state legislatures have exclusive power in their territories over provisions regulating personal laws, the employment of per- matters, among others, that involve Islamic law and personal sons of a certain religious group, or any provision for the pro- and family law; land; agriculture, including agricultural loans; tection, well-being, or advancement of indigenous peoples, and local government.85 If a state law contravenes a federal including issues of ancestral domain and quotas for public law, the federal law shall prevail.86 ofﬁce.101 The federal constitution also guarantees all citizens MALAYSIA PAGE 87

the right to freedom of speech, expression, assembly, and asso- International sources ciation, subject to restrictions in the interest of national secu- The federal constitution authorizes the federal legislature to rity or “public order or morality.”102 ratify treaties, agreements, and conventions with other coun- Under the federal constitution, legislative powers over tries.113 Treaties become part of Malaysian law only upon different matters are designated to the federal government, passage of implementing legislation by the Parliament.114 the state government, or both. Matters pertaining to civil Ratification of a treaty does not allow it to take precedence and criminal laws and procedures, such as codification of the over national laws. Rather, once ratified, a treaty is often penal code and the Criminal Procedure Code, fall under the accepted with reservations, and the treaty may eventually be authority of the federal government.103 modified to accommodate coexisting national laws.115 Among areas under the legislative authority of states are Malaysia has ratified the Convention on the Elimination Syariah laws for Muslims, and native personal or customary of All Forms of Discrimination against Women (CEDAW),116 laws for indigenous peoples and tribal groups.104 Although and the Convention on the Rights of the Child.117 Malaysia Malaysia’s legal system is structured according to English com- ratified CEDAW with reservations to several articles on the mon law, Islamic law and customary law form a vital part of grounds that they conflict with Syariah law and the federal the legal system.105 Syariah law applies only to Muslims with constitution.118 Although the government partially withdrew regard to issues that come under family law; non-Muslims its reservations in 1998, it upheld reservations on the articles are subject to the civil law in all instances. Thus, Muslims in on eliminating social and cultural discrimination against Malaysia must refer to Syariah courts for adjudication of mat- women;119 on providing women equal rights to participate in ters concerning marriage, divorce, inheritance, maintenance, government120 and to extend citizenship to their children;121 custody of children, child support, and in some cases, sexu- and on assuring equal rights in marriage, divorce, and cus- ality, sexual acts, and rape. (See “Judicial branch” for more tody.122 The government of Malaysia has not signed or rati- information on Syariah courts.) Under the Administration fied other major treaties, such as the International Covenant of Islamic Law (Federal Territories) Act 1993, religious fatwas on Civil and Political Rights; the International Covenant (Islamic decrees) issued by the National Council for Islamic on Economic, Social and Cultural Rights; the Convention Affairs may become legally binding if they are adopted by against Torture and Other Cruel, Inhuman or Degrading state governments through implementing legislation.106 The Treatment or Punishment; and the International Convention National Council for Islamic Affairs coordinates the Islamic on the Elimination of All Forms of Racial Discrimination. Councils of each state.107 Islamic law is dominant in the pen- Malaysia has participated in several key international con- insular states, while customary law plays an important role in ferences, and endorsed the development goals and human the eastern states of Sarawak and Sabah.108 rights principles contained in the resulting consensus docu- Due to the complicated nature of the legal system, there ments. International consensus documents the govern- are numerous discrepancies and inconsistencies in the way ment has adopted include the 1993 Vienna Declaration and the laws are applied. Syariah law is applied inconsistently Programme of Action; the 1994 International Conference because of diverse enactments of laws by various states. Fur- on Population and Development (ICPD); the 1995 Beijing thermore, there is some overlap between Syariah law on the Declaration and Platform for Action; and the 2000 United one hand, and civil and criminal law on the other, which Nations Millennium Declaration and the Millennium Devel- causes complications, particularly when laws are adapted and opment Goals.123 amended.109 Malaysia’s legal framework is complemented by national and state policies enumerated in successive long-term (10 to II. Examining 20 years) Outline Perspective Plans, and medium-term (five Reproductive Health years) development plans. Currently, the Third Outline Per- spective Plan (OPP3) for 2001–2010 and the Eighth Malay- and Rights sia Plan for 2001–2005 are operative.110 The OPP3 outlines In general, reproductive health matters are addressed through Malaysia’s development strategies and policies for the current a variety of complementary, and sometimes contradictory, decade, and is based upon the National Vision Policy (NVP), laws and policies. The scope and nature of such laws and which was adopted in 1991 and sets forth strategic develop- policies reflect a government’s commitment to advancing the ment goals for 2020.111 The Eighth Malaysia Plan is the first reproductive health status and rights of its citizens. The fol- phase in the implementation of the OPP3.112 lowing sections highlight key legal and policy provisions that PAGE 88 WOMEN OF THE WORLD:

together determine the reproductive rights and choices of munities,” paying special attention to those in straitened cir- women and girls in Malaysia. cumstances; the plan also calls for the optimal use of resources in the provision of health care.134 As with prior development A. GENERAL HEALTH LAWS AND POLICIES plans, the Eighth Malaysia Plan focuses on developing the The federal constitution of Malaysia does not formally guar- primary health-care system and improving the quality and antee the right to health. It provides that the federal and equity of health services.135 To that end, priority is placed on state governments share legislative powers over public health, the following areas: sanitation, and disease prevention.124 However, the federal ■ developing and expanding the service capacity of pri- government has exclusive authority over legislative and regu- mary, secondary, and tertiary health facilities; latory matters relating to hospitals, clinics, and dispensaries; ■ enhancing the delivery of health services through health insurance; the medical profession; prescription drugs; information technology; and maternal and child welfare.125 ■ improving the quality and quantity of health-care Malaysia’s health policies are formulated as part of the fed- personnel; and eral government’s five-year development plans and its annual ■ furthering medical research and development.136 budget. They may also be shaped by programs designed to The plan also sets forth strategies for health-sector devel- address specific concerns or problems in greater detail than opment, including the following: do the plans or budgets.126 The Eighth Malaysia Plan con- ■ provide affordable and quality health care; tains the country’s current health policy.127 The plan’s health ■ expand the wellness (healthy lifestyle) program; objectives fit within the broader framework of the OPP3.128 ■ coordinate and collaborate between public- and pri- The Ministry of Health formulated the Vision for Health for vate-sector health-care providers; 2020, in tandem with its National Vision Policy, as a guiding ■ increase the number of health-care workers; principle for all its strategies.129 ■ strengthen the telehealth system137 to further Malay- Objectives sia’s reputation as a regional center for health services; According to the OPP3, the objectives of health services are ■ improve health-care research capacity and capability; to alleviate the negative consequences of poverty on health; ■ develop and institute a health-care financing scheme; improve quality of life; promote and develop health tourism; and and contribute to better health, longevity, and citizens’ well- ■ strengthen governance over the health sector (e.g., being.130 The plan sets forth various goals and strategies to implement regulations for traditional practitioners improve health services, including the following: and medical products).138 ■ expanding health services in both urban and rural The agenda within the plan’s strategies for health-sector areas; development covers the following specific areas: ■ emphasizing promotive and preventive health care ■ provide promotive and preventive health services and healthy lifestyle campaigns in the public, private that include national health education and awareness and nongovernmental sectors; campaigns, such as the healthy lifestyle campaign, ■ strengthening programs on immunization, food and and programs on immunization, school health ser- nutrition, water quality, and sanitation;131 vices, food and nutrition, safe water, and occupational ■ continuing to ensure that the needs of poor and low- health and safety;139 income households are met in implementing health ■ offer medical services, such as the treatment of programs;132 noncommunicable diseases (e.g., cardiovascular ■ facilitating the entry of foreigners and their families diseases, diabetes mellitus, and cancer); upgrade seeking medical services in Malaysia; and trauma management and maternal and perinatal ■ increasing foreigners’ use of Malaysian health facilities health services; strengthen diagnostic pathology and and expanding clientele bases through the promo- imaging services; construct specialized hospitals tion overseas of Malaysian private hospitals and health and health facilities in urban and rural areas; expand facilities.133 private-sector medical services; promote health Strategies for implementing the health goals of the OPP3 tourism; and introduce cost-sharing concepts are outlined in the Eighth Malaysia Plan, which provides that through health-care financing schemes; the objective of health services is to raise and continuously ■ raise the quality of health services manpower by improve “the health status of individuals, families and com- improving health professionals’ education and train- MALAYSIA PAGE 89

ing; encouraging postgraduate specialization in health programs in accordance with federal health policies various areas of medicine; and recruiting all types of and objectives.152 All state health plans and programs must health personnel in the public health sector; and undergo review by the federal Ministry of Health prior to

■ raise the level of medical research and development by being submitted to the government for approval.153 intensifying research in clinical health systems, health At the district level, the deputy director of health (medi- management and promotion, epidemiology, and bio- cal) oversees the medical officer for health or the senior health medical technology; and by strengthening the research official who is responsible for the administration of all health- capacity of the National Institutes of Health.140 related programs and matters in the district.154 The long-term goal of Vision for Health 2020 is to create The ministry recently took over the provision of some “a nation of healthy individuals, families, and communities areas of primary, secondary, and tertiary public health care through a health system that is equitable, affordable, efficient, from local authorities.155 Services are provided through a technologically appropriate, environmentally adaptable, and nationwide network of hospitals; community, mobile, and consumer friendly.”141 The vision statement emphasizes qual- maternal and child health clinics; and specialized institu- ity, innovation, health promotion, and respect for human dig- tions.156 Service provision is facilitated through a hierarchi- nity, and encourages individual responsibility and community cal referral system with hospitals providing the highest level participation in the enhancement of the quality of life.142 of care.157 Infrastructure of health-care services The Ministry of Health operates 124 government hospitals Government facilities throughout the country.158 Other government health facili- The Ministry of Health is the main government agency ties include 172 urban health clinics, 94 maternal and child responsible for formulating health policies and delivering health clinics, 168 mobile health units,159 and 2,620 rural health care.143 At the federal level, the ministry develops poli- community health clinics.160 Secondary and tertiary medical cies, programs, procedural standards, and techniques for vari- services delivered through the country’s network of public ous medical specialties.144 health facilities include emergency services; outpatient and The ministry is headed by the minister of health, who ambulatory services; and diagnostic, curative, and rehabilita- is assisted by a deputy minister, the parliamentary secretary, tive services.161 and the director general of health.145 The director general of One of the key goals and strategies of the OPP3 for health manages the overall administration of the ministry and improving health services in Malaysia is to create an efficient reports directly to the minister.146 and client-friendly network of hospitals and clinics by incor- The Public Health Department of the Ministry of Health porating information and communication technology.162 The has several divisions, including those covering family health plan also aims to address the shortage of health professionals development, disease control, dental services, food quality, and by prioritizing human resource development through invest- health education.147 The Family Health Development Divi- ments in education and training, and by stemming the flow sion is further subdivided into subsections of family health, of health professionals from the public to the private sector by nutrition, and primary health care.148 The primary function improving working conditions and career prospects in the of the Family Health Development Division is to manage the public sector.163 delivery of health services through planning, implementing, The National Population and Family Development Board monitoring, and evaluating activities related to family health (NPFDB), which is under the purview of the newly created at all levels of the health system, including matters of repro- Ministry of Women, Family and Community Development, ductive health.149 is the main government body providing sexual and repro- The Medical Services Department of the ministry includes ductive health services, including family planning.164 (See divisions for medical development and medical practice.150 “Reproductive Health Laws and Policies” for more informa- The Research and Technical Support Services compo- tion.) The board is also responsible for implementing popula- nent of the ministry includes several agencies: among them tion and development activities. (See “Population” for more are the Institute for Medical Research, which is the research information.) arm of the ministry, as well as the National Pharmaceutical Health facilities are generally equally distributed among Control Bureau, which oversees quality control of pharma- all states, with the exception of the eastern states of Sabah ceutical products.151 and Sarawak.165 The National Health Morbidity Survey II of At the state level, a director of medical and health ser- 1996 revealed that 97% of the overall population had access to vices is responsible for planning and executing medical and health facilities.166 PAGE 90 WOMEN OF THE WORLD:

Although regional variations exist,167 there were approxi- governs the private health sector with regulations on the devel- mately 8,946 doctors in the public sector nationwide as of opment, standards, quality, and activities of all types of private 2003, with a doctor-to-population ratio of about 1 to 2,800.168 health-care facilities and services.184 The act defines the types Unofficial sources indicate that as of March 2004, 23% of of private health-care facilities that can be established and medical officer posts and 30% of specialist posts in public- the services they may provide. The act further stipulates that sector health facilities were unfilled because of shortages of private health-care facilities must be planned and approved qualified medical personnel.169 There are similar shortages of by the Ministry of Health.185 The act will become effective nurses in public hospitals. As a temporary measure, the gov- pending finalization of its implementing regulations.186 Once ernment is recruiting hundreds of foreign doctors and special- ready, the act will include a fee schedule that regulates both ists to serve in public facilities.170 Retired specialists, private professional and hospital charges. The act will also impose practitioners, surgeons, and anesthesiologists are also being zoning requirements to provide a more equitable distribution employed in public-sector health facilities on a contractual of private health facilities and services.187 or consultancy basis.171 In addition, the Eighth Malaysia Plan Financing and cost of health-care services provides for the construction of 11 new nursing colleges and Government financing 16 allied health professional training centers, and the expan- About 6.9% of the national budget, or RM 7.55 billion sion of eight existing colleges and centers.172 Thus far, four (USD 1.99 billion) was allocated to the Ministry of Health in private institutions of higher education and 14 private sector 2002.188 In the same year, government funds accounted for training institutions have been set up or expanded to provide 53.8% of overall national expenditure on health. In the Mid- training for medical undergraduates and allied health person- term Review of the Eighth Malaysia Plan in 2003, the federal nel.173 Ultimately, the government’s long-term goal under the government increased its budgetary allocation to the Minis- OPP3 is to achieve a target doctor-to-population ratio of 1 to try of Health for implementing the health sector component 800 by 2010.174 of the plan from RM 5.5 billion (USD 1.45 billion) to RM 9.5 Privately run facilities billion (USD 2.5 billion), which makes up about 6% of the Expanding curative care services in the private sector and entire plan’s budget.189 About 80% of these funds go toward strengthening the regulation of private-sector health provid- construction of new hospitals, and upgrading and renovating ers are two key strategies of the OPP3 for improving health public health facilities.190 This represents an increase from the services in Malaysia.175 To realize these goals, one of the main RM 2.6 billion (USD 684 million) committed in the Seventh thrusts of the Eighth Malaysia Plan is to integrate health Malaysia Plan (1996–2000).191 services across the private and public sectors, with comple- In an effort to improve the quality and affordability of mentary referral systems that ensure efficiency and optimal health services, the Seventh Malaysia Plan called for the priva- utilization of resources.176 tization of several public hospitals,192 including the National There were 219 private hospitals in Malaysia in 2002, with Heart Institute.193 However, hospital fees increased in the a capacity of 10,405 beds.177 Most (97.8%) of these hospital aftermath of privatization.194 beds are located in urban areas.178 There are also about 9,245 Private and international financing private practitioners in the health sector, with a doctor-to- Private expenditures accounted for 46.2% of total national population ratio of 1 to 2,709.179 spending on health in 2002.195 The majority (92.8%) of pri- Estate hospitals are private hospitals or dispensaries main- vate spending was in the form of out-of-pocket expenses, and tained by employers on large agricultural estates or plantations the remainder (7.2%) was through pre-paid plans.196 Gener- for their laborers’ treatment.180 Such work sites must have ally, although individuals with more disposable income tend their own health facilities, as most are located in isolated areas to receive medical services in private facilities at their own far from the nearest government health facilities. expense, they are also likely to rely on the subsidized public Traditional medicine in the Malay, Chinese, and Indian system for higher-cost procedures.197 traditions is also widely practiced in Malaysia. As of 2001, Malaysia practices a policy of national self-reliance and gen- there were 3,374 registered traditional practitioners.181 How- erally refrains from seeking international funding, although ever, the actual number of such practitioners may be higher, it does receive technical support for health programs from given the popularity of traditional medicine for its accessibil- several international development agencies.198 Due to Malay- ity and the long-held belief in the curative powers of tradi- sia’s relatively advanced state of development, assistance from tional practitioners.182 international agencies focuses on a few areas, such as collab- The Private Healthcare Facilities and Services Act 1998183 orations between the government and the United Nations MALAYSIA PAGE 91

Children’s Fund (UNICEF) and the World Health Organiza- the Parliament for the establishment of a Medical Assistance tion (WHO) to develop sexuality and HIV/AIDS education Fund (Tabung Bantuan Perubatan), with a starting budget of and activities for youth.199 RM 25 million (USD 6.58 million). The fund is designed to Cost provide coverage for the poor and the disabled for the cost of Fees for public health services are regulated by the Fees treatment, drugs, and medical appliances that are not available Act 1951.200 Public health services are heavily subsidized by at government hospitals, and for medical expenses incurred the government, with the patient responsible for about 10% from chronic diseases.220 of the actual cost. Certain fees can be waived for eligible Two important goals of the OPP3 are to implement a low-income and rural individuals.201 Noncitizens202 (such health-care financing scheme for universal coverage and to as migrant workers) may also receive services in public facili- ensure “appropriate sharing of costs by private and public ties, but at a higher rate of fees.203 Providers’ fees in the pri- health-care providers and consumers.”221 vate sector are guided by the 2002 Fee Schedule issued by the The Eighth Malaysia Plan calls for the establishment of Malaysian Medical Association,204 while hospital charges such a regulatory mechanism to ensure that quality health care is as room, board, and medicines are determined by individual provided at a reasonable cost in both the public and private hospital boards.205 sectors.222 In the Midterm Review of the Eighth Malaysia The Employees’ Provident Fund, established under the Plan, the government committed itself to ensuring that cost- Employees Provident Fund Ordinance 1951, is a government effective medical technologies are available in both the public health insurance scheme.206 Required monthly contribution and private sectors.223 is 12% for employers, and 9% for employees, of their monthly Regulation of drugs and medical equipment salaries, regardless of the age of the employee.207 The scheme The registration of all drugs imported by or manufactured covers treatment of critical illnesses for members and their in Malaysia is overseen by the National Pharmaceutical Con- immediate family members,208 and also offers old-age benefits trol Bureau in accordance with the Control of Drugs and to members upon retirement.209 The Social Security Organi- Cosmetics Regulations 1984.224 Under the regulations, drug zation, which pays for work-related illnesses, medical benefits, manufacturers are required to obtain appropriate licensure disability allowances, maternity benefits, and pensions, was to produce drugs, and drug retailers may only sell, supply, or established in 1969.210 The Government Pension Scheme for import products that are registered by the bureau.225 Licens- Civil Servants is a “non-contributory social security scheme es and registrations are issued upon the bureau’s evaluation of for government employees.”211 This scheme serves not only the quality, efficacy, and safety of drugs after pharmaceuti- as security for old age, but is also designed to provide financial cal, microbiological, and toxicological tests are performed.226 assistance to dependents, should a government employee die The bureau may also suspend, cancel, or revoke the registra- in service or retire.212 It is a safety net for widowed spouses tion or license of any drugs “at any time and without assign- and is particularly beneficial in providing for wives, who gen- ing any reason.”227 erally survive longer than husbands.213 However, in terms of Regulation of health-care providers coverage, less than 1% of the population is protected by this The Malaysian Medical Council, a statutory body consti- safety net.214 tuted under the Medical Act 1971, regulates medical practice Voluntary private medical insurance, which is offered by pri- in Malaysia by registering and establishing standards of prac- vate insurance companies such as ING Insurance and Pruden- tice of medical practitioners, and investigating and disciplining tial, is also available to the general public.215 These companies instances of professional misconduct.228 After five or six years of offer plans that cover women’s sexual and reproductive health specialized study, newly graduated medical students must com- conditions, such as pregnancy; treatment for reproductive, cer- plete a 12-month residency, or “housemanship,” followed by a vical, and breast cancers; and other specific conditions.216 three-year period of compulsory service in the public health A national health-financing scheme, which was proposed agencies as a medical officer.229 Doctors may become licensed in the Seventh Malaysia Plan, would contain basic health-care as specialists after an additional two to three years of train- packages, such as secondary-care treatment, out-patient treating through service in the public sector.230 Practicing doctors ment, and preventive care treatment.217 In 2001, the health must also fulfill continuing medical education requirements.231 minister proposed the establishment of the National Health Obtaining registration by fraud or misrepresentation is deemed Financing Authority to oversee the national scheme.218 As of a punishable act under the Medical Regulations 1974.232 The mid-2005, both proposals have yet to be finalized.219 council has a Code of Professional Conduct that establishes The Ministry of Health recently submitted a proposal to minimum standards of medical practice for professional health- PAGE 92 WOMEN OF THE WORLD:

care providers in the government and the private sectors.233 Act 1956, which was amended in 1984 to further cap any dam- Providers in breach of the code for “infamous conduct in any ages awarded.251 The Medical Act 1971 does not specifically professional respect”234 may be subject to disciplinary proceed- address medical negligence.252 There are no official statistics ings under the Medical Regulations 1974.235 on medical negligence litigation, although a survey conduct- The professions of nursing,236 midwifery,237 and phar- ed from 1986 through 1990 documented 61 negligence cases macy238 are regulated by specific acts and corresponding against the Ministry of Health, or an average of approximately statutory boards. Nurses are registered under the Nurses 12 cases per year.253 Statistics indicate that a great number of Act 1950239 and are governed by the Nursing Board.240 The doctors do not have malpractice insurance.254 Midwives Act 1966 regulates the conduct and practice of Patients may also bring grievances to the Malaysian Medi- midwifery.241 The Registration of Pharmacists Act 1951 pro- cal Council, which has discretionary jurisdiction to investigate vides for the registration of pharmacists and the establish- and discipline certain instances of professional misconduct, ment of the Pharmacy Board, which monitors compliance even if the conduct does not rise to the level of a criminal with pharmacology training and examination require- offense or tort liability. The Malaysian Medical Council’s ments.242 Pharmacists are bound by the Code of Conduct Code of Medical Ethics outlines the following doctors’ duties for Pharmacists and Bodies Corporate, as adopted by the toward their patients:

board.243 The Estate Hospital Assistants (Registration) Act ■ to obtain the patient’s consent for medical examina- 1965 regulates medical assistants working at private estate tion and treatment;

hospitals and provides for the establishment of the Estate ■ to charge reasonable fees, according to the Malaysian Hospitals Assistants Board.244 Medical Association’s schedule of fees;

Practitioners of traditional medicine are not speciﬁcally reg- ■ to maintain patient conﬁdentiality; and

ulated by the Medical Act 1971, although the act does prohibit ■ to recognize patients’ rights to access their medical such practitioners from representing themselves as modern records.255 health-care providers and from using syringes, stethoscopes, The council may revoke a physician’s license and order and other modern medical equipment for which specialized reimbursement of legal fees, but may not award damages.256 training is required.245 Since 1992, the National Pharmaceutical In 1995, the Federation of Malaysian Consumers Asso- Control Bureau of the Ministry of Health has accepted applica- ciations, the Malaysian Medical Association, the Malaysian tions for the registration of traditional medicines; regulations Dental Association, and the Malaysian Pharmaceutical Soci- were imposed on domestic manufacturers and importers of ety signed the Patient’s Charter,257 a nonbinding document such medicines in 1998 and 1999, respectively.246 Practitioners intended to educate health-care providers and patients about of traditional medicine are encouraged to register with vari- their respective rights and ethical responsibilities. The charter ous associations, although they are not legally required to do establishes that patients have the rights to the following:

so. The Ministry of Health is now drafting a Traditional and ■ health care and humane treatment, regardless of age, Complementary Medicine Act, which would create a regu- sex, ethnic origin, religion, political afﬁliation, eco- latory council similar to that of other medical professions.247 nomic status or social class;

The ministry has also drafted a National Policy on Traditional ■ choice of care;

and Complementary Medicine, which aims to ensure the avail- ■ acceptable safety;

ability of safe and high-quality traditional and complementary ■ adequate information and consent;

medicine practices and products for the public at large, and to ■ redress of grievances;

facilitate the integration of such practices and products into ■ participation and representation;

the national health-care system.248 The National Committee ■ health education; and

for Research and Development in Herbal Medicines, whose ■ a healthy environment.258 formation was outlined in the Eighth Malaysia Plan, provides The charter also includes a list of patients’ responsibili- guidance on the practice of traditional and complementary ties,259 including the responsibility to “accept all the conse- medicine and on related products and training.249 quences of the patient’s own informed decision.”260 Patients’ rights B. REPRODUCTIVE HEALTH LAWS AND POLICIES Malaysia’s legal system operates according to common law Malaysia currently has no government policy or legislation principles and allows damages to be recovered for medical mal- speciﬁcally addressing reproductive health.261 However, practice under tort.250 The amount of damages that may be many of the government’s current policy objectives for wom- awarded in a personal injury claim is limited by the Civil Law MALAYSIA PAGE 93

en’s health and reproductive health are generally described in facilitate better family life and the complete devel- the Eighth Malaysia Plan.262 One of the plan’s broad strate- opment of the individual person, and improve the gic goals for women and development is improving women’s socioeconomic status of women, which will lead to health status through the national Family Health Program, fertility decline and decline in population growth;

which was introduced in 1996 and addresses various areas of ■ supporting quality-of-life enhancement programs women’s overall health and reproductive health.263 The pro- and activities including those for health, welfare, fam- gram covers maternal and child health care; immunizations; ily development, and improvement of women’s status;

family planning; early cancer detection; nutrition; the pre- ■ integrating family life education and population edu- vention of sexually transmissible infections (STIs), including cation into formal and nonformal education curricu- HIV/AIDS; and the identiﬁcation of risk factors for noncom- lums;

municable diseases, such as cancer, mental illness, and cardio- ■ advising government and nongovernmental agencies vascular disease.264 The plan also calls for the provision of on the relationship between population and family health education programs for women, which focus on pro- planning issues and development; and

moting healthy lifestyles and good nutrition.265 In recogni- ■ researching population issues, especially the relation- tion of the “peculiarities of illnesses confronting women, such ship between medicine, biology, socioeconomic as … those related to reproductive health,” and in an effort to status, and culture on fertility patterns, population improve the quality of women’s health care, the plan commits growth, and overall socioeconomic development.273 to establishing a special women’s hospital that will serve as a Among the providers of family planning services in Malay- national referral center, and to conducting research on various sia as of 2000 are 2,826 Ministry of Health clinics, 82 NPFDB aspects of women’s health, with an emphasis on biomedical, clinics, nine army clinics, and 307 clinics run by the Federa- socio-behavioral, and clinical research.266 tion of Family Planning Associations of Malaysia.274 Regulation of reproductive health technologies Contraception Multiple forms of assisted reproductive technology are According to the most recent Malaysian Population and available in Malaysia, including artiﬁcial insemination and Family Survey, which was conducted in 1994, the contracep- in vitro fertilization.267 More sophisticated procedures are tive prevalence rate among currently married women aged offered in three ﬂagship public hospitals, while simpler fertil- 15–49 years was 54.5%.275 Of these users, 54.7% used mod- ity assistance procedures are available in most general hospi- ern methods and 45.3% used traditional methods.276 Among tals of the public system.268 In the private sector, 21 centers women who did not use contraceptives, the survey found that offer assisted reproductive technologies.269 The Ministry 58.7% had never practiced contraception, while the remainder of Health foresees such technologies as a potential area for had discontinued use for various reasons.277 medical tourism.270 The most popular contraceptive method used in Malaysia Family planning is the pill, as evidenced by the fact that between 1996 and General policy framework 2000, it was by far the most chosen method of contracep- There is currently no national family planning policy per tion among new family planning acceptors. In 2000 alone, se.271 However, the government has in the past formulated 74.0% of new family planning acceptors chose the pill as strategies to guide implementation of family planning and their method of contraception. Condom use and tubal liga- population activities.272 Following the ICPD in 1994, the gov- tion are the next most commonly chosen methods (9.0% and ernment formulated a new strategy to enhance population at 4.7%, respectively).278 the macro level and family development at the micro level, There is a continuing belief among some rural Muslim which includes the following components: Malays that family planning is completely prohibited in

■ enhancing the quality and standards of contraceptive Islam,279 which may explain why Malay women have lower services in the country through the provision of vol- contraceptive prevalence rates than women of other ethnic untary family planning services by medical, paramed- groups. The 1994 Malaysian Population and Family Survey ical, and specially trained personnel, which include found that 22% of married Malay women aged 15–49 used a supportive and follow-up services such as specialist modern method, compared with 47% of Chinese women and and specialized counseling services (e.g., genetic 33% of Indian women, respectively.280 counseling and infertility evaluation and therapy); Contraception laws and policies

■ providing family life and population education and There is no statute banning or restricting the use of con- services under the social development program to traceptives in Malaysia, or legal requirements for spousal con- PAGE 94 WOMEN OF THE WORLD:

sent or parental authorization. The National Essential Drugs Plan’s Kompleks KASIH Keluarga program, a certain number List, issued by the Pharmaceutical Services Division within of specialized clinics are being established nationwide, while the Ministry of Health, lists approved drugs for marketing in other facilities are being upgraded to provide family planning Malaysia, including contraceptives.281 services294 with the long-term goal of developing these clin- Despite the absence of laws prohibiting sterilization in ics into a “one-stop family service centre of excellence.”295 Malaysia, the National Council for Islamic Affairs in 1981 Furthermore, the nationwide Nur Sejahtera: Sihat dan Segak issued a fatwa (opinion based on points of law in religious mat- program (Wellness: Healthy and Smart program) is being imple- ters) that forbids the sterilization of men and women on the mented to increase reproductive health awareness among the premise that any form of permanent contraception is haram middle-aged population.296 As the main provider of family (illegal); this fatwa, however, permits temporary methods of planning services, the NPFDB is responsible for providing contraception for health and economic reasons.282 Fatwas sterilization procedures, which are performed in the board’s may become legally binding in states that adopt such opinions clinics, whereas Ministry of Health clinics refer such proce- through state legislation.283 dures to hospitals.297 There are no legal provisions governing the use of emer- Family planning services provided by NGOs and the private gency contraception. Although emergency contraception is sector generally not provided in the public health system, an attend- In addition to the Ministry of Health and the NPFBD, the ing medical specialist may prescribe it in cases of sexual vio- Federation of Family Planning Associations of Malaysia is the lence such as rape or incest.284 third main implementing agency of family planning services Although sterilization is not a commonly used method in the country.298 The federation is a nonproﬁt association of contraception overall, tubal ligation is much more preva- that provides family planning services through a network of lent than vasectomy.285 Among new users of family planning about 307 clinics to mostly low-income and marginalized methods in 2000, for example, 6.3% chose tubal ligation and women, including those in indigenous communities and virtually none chose vasectomy (0.003%]).286 urban areas.299 The federation also operates a community- The eligibility criteria for female and male sterilization in based project initiated in 1980 called the Community Clinic government clinics include the following: Extension Family Planning program.300 The program pro-

■ having two or more children of each sex; vides family planning services to clients in underserved areas

■ having achieved a desired family size; and through a network of 423 outlets that are staffed with doctors

■ having a medical contraindication to other types of and community-based agents.301 contraception.287 A wide network of private medical practitioners also plays In addition, spousal consent is required “to ensure matri- a main role in the delivery of family planning services in monial harmony between husband and wife.”288 Malaysia.302 The private sector is responsible for about 44.8% Regulation of information on contraception of family planning and contraceptive service provision.303 The Medicines (Advertisement and Sale) Act 1956 prohib- Unmarried individuals generally seek family planning services its advertisements of contraceptives.289 However, the prohi- outside of the government sector, choosing to go to private bition does not apply to advertisements issued by the federal gynecologists and pharmacies instead.304 government, state governments, local or public authorities, Maternal health the governing body of a public hospital, or persons authorized Malaysia’s maternal mortality ratio has fallen dramatically by the minister of health to publish such advertisements.290 from 148 maternal deaths per 100,000 live births in 1970, to Government delivery of family planning services 30 deaths per 100,000 live births in 2002.305 Improvements Family planning services in the public sector are provided in access to health care in rural areas, the development of by the Ministry of Health and the NPFDB, with the latter professional midwifery, the installment of a highly efﬁcient being the primary government body responsible for providing referral system, and the provision of free transportation to family planning and other sexual and reproductive health ser- medical centers are among the reasons for this signiﬁcant vices.291 These two bodies provide services and contraceptives drop in maternal mortality.306 Seventy percent of pregnant through various outlets and clinics, including maternal and women receive prenatal care, which is provided free of charge child health clinics run by the Ministry of Health, and clinics in government facilities.307 It is estimated that women make operated by the NPFDB.292 As of 2000, almost all Ministry an average of seven prenatal visits per pregnancy.308 Although of Health clinics (99.7%) had integrated family planning into most deliveries occur in health facilities, more than 95% of their provision of services.293 Pursuant to the Eighth Malaysia all deliveries, even those that take place at home, are assisted MALAYSIA PAGE 95

by skilled attendants.309 The average proportion of deliveries and make recommendations for remedial measures at that are considered to be “safe”—i.e., those assisted by trained all levels of care.317 personnel—is highest in Peninsular Malaysia and Sarawak In addition to these efforts, the government launched the (about 99% and 98%, respectively), and lowest in Sabah (about Safe Motherhood Initiative in 1989, which was inspired by 81%).310 Conditions originating in the perinatal period are the Safe Motherhood Conference held in Nairobi, Kenya, responsible for about 5% of maternal deaths in government in 1987.318 The initiative’s strategies include redressing social hospitals, and these rank eighth out of ten in the principle inequalities facing women, ensuring access to family plan- causes of maternal mortality in government hospitals.311 ning, developing community-based maternity care, and Laws and policies providing back-up and support services at the primary health- The government has demonstrated a high degree of politi- care level.319 cal will in undertaking efforts to reduce maternal mortality Nutrition and improve the status of maternal health over the past several The National Coordinating Committee on Food and decades.312 Although there is currently no single compre- Nutrition formulated the National Plan of Action for Nutri- hensive national law or policy addressing maternal health per tion (NPAN) of Malaysia in 1995 to implement its commit- se, government activities and services in this area have typi- ments under the World Declaration and Plan of Action for cally been implemented through the framework of various Nutrition, which was adopted at the International Confer- national programs and initiatives promoting maternal health ence on Nutrition in Rome in 1992.320 The Malaysia plan and safe motherhood.313 addresses nine major nutrition areas proposed at the confer- Some of the government’s current strategies to reduce ence, including the following six:

maternal mortality and improve maternal health include the ■ promotion of breast-feeding;

following: ■ services for populations that are socially, economically,

■ training traditional birth attendants; or nutritionally vulnerable;

■ utilizing a risk approach strategy, which was imple- ■ prevention and treatment of specific micronutrient mented in 1986, that identifies women at high risk deficiencies;

of pregnancy- or delivery-related complications to ■ development of policies and legislation that promote give them the necessary level of care and provide nutritional development;

referrals;314 ■ promotion of healthy lifestyles and dietary practices;

■ increasing access to family planning services and and

facilities; ■ ﬁelding of surveys of the national nutrition situa-

■ developing a plan of action for community participation.321 tion; Several outcomes have resulted from the national nutrition

■ strengthening resources and capacity at operational plan, including the development of National Dietary Guide- levels; lines for Malaysians, the creation of a nutrition tool titled Rec-

■ using Home-Based Maternal Health Cards, a system ommended Nutrient Intake for Malaysia,322 the enactment of introduced in 1994 in which cards are retained by the the Food and Nutrition Policy, the ﬁelding of the Malaysian women, rather than kept on ﬁle at health facilities, to Food Consumption Survey, and the inclusion of a nutrition improve the exchange of health record information component in the Seventh and Eighth Malaysia Plans.323 among providers and assure continuity of care;315 In 1997, the government introduced the Nutrition Reha-

■ establishing “low-risk delivery centers” in urban areas bilitation Program for Pregnant Mothers to improve the health and “alternative birthing centers” in rural areas for status of pregnant women, speciﬁcally low-income women, low-risk women in order to reduce the number of through the provision of adequate nutrition.324 Other gov- low-risk deliveries in hospitals and free up more hos- ernment efforts targeted at improving the nutritional status of pital beds, staff, and other scarce resources for high- mothers and pregnant women include:

risk pregnancies requiring specialized care;316 ■ nutrition education;

■ providing “Alternative Birthing Centres (ABC)” ■ supplementary feeding programs;

which function as half-way centers as an alternative ■ iron and vitamin supplements for pregnant women; for mothers from very remote areas; and and

■ establishing a confidential inquiry system for mater- ■ efforts to address specific deficiencies, such as iodiz- nal deaths to identify preventable contributing factors ing salt to address iodine deficiency.325 PAGE 96 WOMEN OF THE WORLD:

The OPP3 includes endorsing the adoption of better ovum or a foetus, from the uterus, at any period before the nutritional practices to improve health status as one its key full term is reached.”340 strategies.326 In 2002, the National Fatwa Committee issued a fatwa set- Safe abortion ting forth the conditions for permissible abortion. The com- There is a dearth of data regarding the prevalence of abor- mittee declared that an abortion after 120 days’ gestation is tion in Malaysia.327 An unofficial report issued in the 1980s considered murder unless the mother’s life is at stake, or in estimated that one in three live births end in abortion.328 cases of fetal impairment.341 The parliamentary secretary of Abortion ratios have reportedly more than doubled since then, the prime minister’s department revealed that the national with ratios in urban areas being three times higher than those government had decided not to publicize the fatwa when in rural areas.329 Other unofficial sources estimate the rate of it was issued for fear that it could be misused.342 A fatwa illegal abortions to be 0.1% of 500,000 live births per year.330 A must be adopted by state governments before it can be legally confidential government study of maternal deaths in 1991 did enforced.343 not list unsafe abortion as a major cause of maternal death.331 According to the Malaysia Medical Council’s Code of The Ministry of Health’s Information and Documentation Medical Ethics, abortions performed for other than therapeu- System Unit reported 33,759 induced abortions, and nine tic reasons are considered “infamous conduct” and physicians deaths resulting from abortions, in 2002.332 However, more who perform such acts are subject to disciplinary action in recently in 2004, the government has publicly recognized the addition to any criminal liability they may incur under the problem of unsafe abortion in Malaysia, and its link to mater- penal code.344 nal mortality and morbidity.333 According to senior medical personnel in public hospitals, Abortion laws and policies abortions are performed in accordance with standard operat- The principal source of law on abortion in Malaysia is the ing procedures under a uniform approach to dealing with penal code. The main code provision dealing with abor- requests for termination of pregnancy.345 These standardized tion, which was amended in 1989, permits abortion upon procedures were compiled at the initiative of a public hospital the good-faith opinion of a registered medical practitioner in the city of Ipoh, which resulted in the publication of the who asserts that continuation of the pregnancy would pose Clinical Practice Guideline: Termination of Pregnancy. Accord- a greater risk to the woman’s life or mental or physical health ing to this publication, which is based on guidelines issued than termination of the pregnancy.334 Prior to the amend- by the Royal College of Obstetricians and Gynaecologists, ment, abortion was permitted only if performed in good United Kingdom,346 a request for termination of pregnancy faith for the purpose of saving the woman’s life.335 can be accommodated at public facilities for medical or psy- Abortion performed in violation of the penal code with chiatric conditions.347 The practice guidelines recommend the woman’s consent carries punishment of up to seven years’ that doctors obtain a second medical opinion before proceed- imprisonment and a fine for both the provider and the woman ing with the abortion, which should be performed by a doc- if she is “quick with child”;336 the punishment is up to three tor who was not involved in the decision-making process.348 years’ imprisonment or a fine, or both, if she is not “quick with The guidelines also instruct doctors to provide counseling child.”337 Abortion performed without the woman’s consent, to women seeking abortion, with the involvement of a psy- irrespective of whether she is “quick with child,” carries a chiatrist, medical social worker, and other personnel, for the punishment of up to 20 years’ imprisonment and a fine for the following purposes:

provider.338 If an abortion results in the woman’s death and ■ to determine the reason for the abortion request and she has consented to the procedure, the provider is subject to the implications of the termination;

up to ten years’ imprisonment and a ﬁne; if she has not con- ■ to determine the appropriate method of termination sented, the penalty is up to 20 years’ imprisonment.339 The (depending on age of gestation) and its possible com- penalties for illegal abortion under the penal code did not plications;

change as a result of the 1989 amendment to the code. ■ to provide emotional support; and

The term “abortion” is not actually defined under the laws ■ to discuss future pregnancies and contraceptive of Malaysia. Rather, the penal code refers to the procedure use.349 as “causing miscarriage,” which is also undefined under the The guidelines also provide for postabortion care.350 code. However, Malaysia accepts the legal definition of mis- Regulation of information on abortion carriage from a 1955 Indian court case, In re Malayara Seethu, The Medicines (Advertisement and Sale) Act 1956 prohib- as the “premature expulsion of the product of conception, an its individuals from taking part in the publication of adver- MALAYSIA PAGE 97

tisements relating to abortion.351 First-time contravention of risk of infection or lead to the spread of the disease.364 The the act carries a maximum prison term of one year or a fine First Schedule of the act lists the applicable infectious diseases, of up to RM 3,000 (USD 790), or both;352 the penalty for which include chancroid, all forms of gonococcal infections, subsequent offenses is imprisonment of up to two years or a syphilis, and HIV.365 The penalties for offenses committed fine of up to RM 5,000 (USD 1,316), or both.353 Individuals under the act include imprisonment of two to five years or a charged under the act may avoid punishment in certain situ- fine, or both.366 The act does not offer legal protections for ations, such as if the abortion-related advertisement appeared people living with HIV/AIDS in cases of discrimination.367 in a technical publication intended for circulation among In addition, the penal code contains provisions criminaliz- health-related professionals, including registered medical ing negligent368 or malignant369 acts “likely to spread infection practitioners, dentists, pharmacists, and individuals in train- of any disease dangerous to life.” It stipulates a punishment of ing for such professions.354 up to six months’ imprisonment or a fine, or both, for negli- Government delivery of abortion services gent acts, and imprisonment extendable to two years or a fine, Legal abortions may be performed in public facilities in or both, for malignant acts.370 accordance with standard clinical guidelines. According to Furthermore, the Action Plan on the Prevention of HIV/ senior medical personnel in government facilities, public hos- AIDS in the Workplace was formulated during the imple- pitals will perform abortions as long as two doctors can prove mentation of the Eighth Malaysia Plan.371 The highest that continuing the pregnancy would result in detriment to policy-making body in relation to HIV/AIDS prevention and the mental or physical health of the woman concerned.355 control is the Ministerial Level Committee on AIDS, which The private sector provides abortion services at costs that was established in 1992.372 The committee is chaired by the vary from one facility to another. The Federation of Fam- minister of health and is made up of members from various ily Planning Associations of Malaysia provides only referrals ministries, including education, youth and sports, national for abortion.356 unity and social development, culture and tourism, rural HIV/AIDS and other sexually transmissible infections development, and the prime minister’s office.373 There are (STIs) two subcommittees under the main committee—the National Excluding HIV, syphilis is the most common STI in Technical Committee on AIDS, which develops and monitors Malaysia, followed by gonorrhea and chancroid. the technical aspects of national HIV/AIDS prevention and The cumulative number of HIV/AIDS cases reported to control measures; and the National Coordinating Committee the Ministry of Health as of December 2002 was 51,256.357 on AIDS, which serves as a forum for governmental agencies The majority of HIV infections in Malaysia are transmitted and NGOs to discuss various social, economic, cultural, reli- via needle sharing among injecting drug users (76.3%), fol- gious, legislative, and other issues relating to the prevention lowed by heterosexual contact (12.1%), other or unknown and control of HIV/AIDS in Malaysia.374 causes (10.1%), and homosexual or bisexual contact (0.9%).358 In addition to comprehensive national plans and programs, By gender, men account for the majority of HIV/AIDS cases, several Ministry of Health guidelines address discrete aspects although the rate of HIV infection among women increased of HIV/AIDS prevention, control, and treatment, including from 1.2% of cases (nine) in 1990 to 9% (629 cases) in 2002.359 the following:

During 2002 alone, the reported number of HIV infections ■ counseling about HIV infection and AIDS;

among women increased by 70% (from 370 to 629 cases).360 ■ AIDS education;

Mother-to-child transmission of HIV has also been steadily ■ management of HIV infection in Malaysia;

increasing.361 By occupation, the largest percentage of infect- ■ management of nursing care for people infected with ed women are housewives (26.3%), with industrial workers HIV/AIDS;375

(4.1%) and sex workers (2.8%) representing smaller percent- ■ management of infected health-care workers;376 and

ages of infected women.362 ■ universal infection control precautions. Laws and policies The Ministry of Human Resources has also developed The Prevention and Control of Infectious Diseases Act policy recommendations relating to HIV/AIDS. In 2001, it 1988 requires a person infected or affected by an infectious issued the Code of Practice on the Prevention and Manage- disease, or a medical practitioner who becomes aware of the ment of HIV/AIDS in the Workplace.377 The code’s main existence of or treats such a disease, to notify the appropri- goal is to reduce the spread of HIV/AIDS by providing guid- ate authorities.363 The act also prohibits infected individuals ance on prevention and management issues in the workplace, from behaving in a manner likely to expose others to the promoting education and awareness on HIV/AIDS, and PAGE 98 WOMEN OF THE WORLD:

encouraging a nondiscriminatory work environment.378 Adolescent reproductive health The Malaysian AIDS Council serves as a liaison between Adolescents aged 10–19 years account for 20.4% of Malay- the government and NGOs involved in AIDS-related work. sia’s total population.390 Girls in that age-group comprise The council itself is an umbrella organization composed of about 10% of the total population.391 Data on Malaysian over 30 NGOs and community-based organizations, through adolescents’ health overall, and on their reproductive health which the government channels funds for AIDS-related proj- in particular, are not readily available,392 and there are few ects in the nonprofit sector. Among the council’s notable comprehensive studies on the subject; a study conducted in efforts was the publication of the Malaysian AIDS Charter in 1994 by the NPFDB with a sample of 2,366 adolescents aged 1995, a nonbinding policy document that outlines the rights 10–19 still serves as a common source of information on ado- and responsibilities of all sectors of the population in relation lescent sexual and reproductive health.393 Of the total number to HIV/AIDS.379 The charter asserts that all individuals have of HIV/AIDS cases as of June 2002, adolescents accounted the right to be treated with “care, consideration, respect and for 1.6%.394 dignity without discrimination of any kind”; to anonymous Laws and policies testing and informed consent to testing; confidentiality; and There is no specific national policy on adolescent to marry, provided that the infected party’s HIV status is dis- reproductive health. In 1995, upon the adoption of the Bei- closed to the partner.380 jing Declaration and Platform for Action, the government The government and NGO sectors have made efforts to stated the following official position on adolescent repro- improve access to antiretroviral treatment and alleviate finan- ductive health: cial hardship for people living with HIV/AIDS. In November …while agreeing that adolescent health is an 2002, the Pharmaceutical Services Division obtained cabinet area requiring attention due to increasing problems approval to import generic versions of patented antiretro- of unwanted teenage pregnancies, unsafe abortions, virals from India under governmental approval to conduct sexually transmitted diseases and HIV/AIDS, we this trade.381 In addition, the Malaysian AIDS Foundation, believe that parental guidance should not be abdi- the fundraising arm of the Malaysian AIDS Council, assists cated and that sexual permissiveness and unhealthy individuals in obtaining antiretroviral therapy through a drug sexual and reproductive practices by adolescents assistance scheme launched in 1998.382 The foundation also should not be condoned.395 sponsors programs that provide monthly financial aid to chil- The government established the Adolescent Health Pro- dren with HIV/AIDS, and interest-free loans to people living gram under the Family Health Development Division of the with HIV/AIDS to assist them in setting up or strengthening Ministry of Health in 1995.396 Three separate divisions were small-scale businesses.383 created in the program in response to a 1996 national health Regulation of information on HIV/AIDS and other STIs survey that found existing health activities to be too general The Indecent Advertisements Act 1953 defines advertise- for the needs of adolescents and recommended targeted health ments relating to venereal disease and sexual intercourse as promotion and prevention services for adolescents.397 The matters of an “indecent nature” and restricts their publica- three divisions focus on policy development, health personnel tion.384 Syphilis, gonorrhea, soft chancre, and bubo (lym- training, and pilot projects.398 phogranuloma inguinale) are included within the definition of In 2001, the government introduced the National venereal disease.385 The act prescribes a maximum punish- Adolescent Health Policy, which aims to promote the ment of imprisonment for one year and a fine of up to RM development of adolescents by ensuring that they take 500 (USD 130).386 The act does not apply to advertisements responsibility for their health, and by empowering them with relating to venereal disease that are published or autho- the knowledge and skills to practice healthy behaviors.399 rized by the federal or state governments, or any local or The policy focuses on preventing the negative health public authority.387 consequences of risk behaviors and enabling adolescents to The Malaysian AIDS Charter affords every individual the make sound choices, develop risk-management skills, and right to accurate and unambiguous information on HIV/ adopt responsible healthy lifestyles.400 AIDS; the federal and state governments are charged with Delivery of adolescent reproductive health services by NGOs responsibility for the public dissemination of such infor- As of 2001, there were about 170 government health clin- mation.388 The charter establishes a national public AIDS ics across the country that provided services to adolescents, resource center that consolidates information from the gov- including medical treatment, screening, and health pro- ernment, private sector, NGOs, and other related agencies.389 motion.401 It is the government’s operational policy not to MALAYSIA PAGE 99

provide certain services, such as family planning methods, to emphasize the link between population growth and eco- unmarried adolescents.402 However, anecdotal evidence sug- nomic development.416 gests that some private-sector providers offer pregnancy tests Laws and policies and contraceptives to adolescents.403 In addition, the condom There is no separate population policy per se. Population is widely available over the counter in convenience stores and goals are addressed in the country’s development plans and are pharmacies, with no restrictions on purchasers.404 articulated by the NPFDB. The government has developed programs addressing spe- According to the data presented in the Eighth Malaysia cific aspects of adolescent reproductive health, with HIV/ Plan, the population—currently over 26 million—is grow- AIDS as a particular area of attention. Through the Program ing at an annual rate of 2.3%.417 This rate is lower than that Sihat Tanpa AIDS Untuk Remaja (Staying Healthy With- registered during the Seventh Malaysia Plan period (i.e., 1996– out AIDS program for adolescents, known as PROSTAR), an 2000), because fertility rates continue to decline as more AIDS education and prevention program, the government women pursue higher education and professional training.418 has established 458 PROSTAR clubs in 339 schools and 119 According to the NPFDB, the thrust of the government’s districts.405 The clubs involve about 23,780 adolescents who current policy on population is to strategize to meet the needs serve as peer group tutors.406 The Eighth Malaysia Plan proof citizens up to the year 2020 in a manner that supports the posed to train 20,000 additional peer group tutors to reach goals of the National Vision Policy, which stresses resource 2.6 million adolescents in 2001.407 Such programs reflect the development and the creation of an economically strong and government’s recognition of young women’s particular vul- competitive community.419 This requires an emphasis on nerability to HIV/AIDS, and its emphasis on providing AIDS the quality of the population, human resource development, information and education.408 and enabling couples to plan their families according to their resources.420 The main aim of the policy is to achieve a popu- C. POPULATION lation growth rate that is in balance with available resources Malaysia’s policies on population have always been closely and sustainable development.421 At the macro level, achiev- linked with the economic development of the nation. The ing this aim will require better integration of population fac- First Malaysia Plan (1966–1970) identified the country’s high tors within development planning processes, and at the micro population growth rate as a problem for national develop- level, it will mean strengthening the family unit to improve ment, and made reduction of the birthrate a key develop- the quality of the population.422 ment goal.409 In 1966, Malaysia passed the Population and Implementing agencies Family Development Act, which created the National Fam- The NPFDB is charged with overseeing the current pop- ily Planning Board, an agency responsible for implementing ulation policy and with performing the following functions: the national family planning program.410 At the time, the ■ formulate policies and methods to increase knowl- board’s objective was to encourage couples to have fewer edge and promote practices relating to population and children in order to reduce the annual growth rate, from 3% family development in order to promote maternal to 2%, within 20 years.411 and child health and the welfare of the family; The Midterm Review of the Fourth Malaysia Plan (1981- ■ program, direct, administer, and coordinate popula- 1985) in 1984 established a new policy direction on population and family development activities nationwide; tion in which moderate growth was viewed as economically ■ train personnel providing services in relation to pop- desirable in order to promote a larger consumer base.412 ulation and family development; That review identified a specific population size of 70 mil- ■ conduct research on medical and biological issues lion as an ideal target toward which to strive over the long related to population and family development; term (115 years).413 ■ promote research on the interrelations between In 1984, the National Family Planning Board was social, cultural, economic, and population changes, renamed the National Population and Family Development especially concerning the nation’s fertility patterns; Board (known by its acronym, NPFDB) to reflect the new and policy’s focus on birth spacing and family welfare rather than ■ establish an evaluation system to assess the effective- limiting births.414 Incentives were also developed to encour- ness of population programs and track the progress age childbearing, such as offering tax breaks for each child toward attaining their objectives.423 in a family.415 (See “Infrastructure of health-care services” for more Subsequent development plans have continued to information.) PAGE 100 WOMEN OF THE WORLD:

Under the Eighth Malaysia Plan, about RM 8 million citizens themselves.430 This case involves discrimination against a (USD 2.13 million) was allocated to the NPFDB for the woman by her employer based on pregnancy. period covered by the plan (2001–2005).424 There are no constitutional guarantees against discrimination on the ground of sexual orientation. Homosexual acts are punishable offenses under civil, criminal, and Islamic laws. The penal III. Legal Status of code criminalizes “unnatural offences,” which are interpreted to Women and Girls include homosexuality.431 A relevant provision of the code was invoked for the first time against a former deputy prime minis- The health and reproductive rights of women and girls cannot ter in a case involving alleged homosexual activity between two be fully understood without taking into account their legal consenting adults.432 Transsexuals are often arrested and charged and social status. Laws relating to their legal status not only under the Minor Offences Act 1955 433 for “indecent behavior.”434 reflect societal attitudes that shape the landscape of reproduc- Under the tenets of Islam, homosexuality is considered morally tive rights, they directly impact their ability to exercise these worse than adultery because it is against nature and the divine rights. A woman or adolescent girl’s marital status, her ability objective of creation and reproduction.435 Liwat (sexual relations to own property and earn an independent income, her level between male persons) and musahaqah (sexual relations between of education, and her vulnerability to violence affect her abil- female persons) are punishable offenses under the Syariah Crimi- ity to make decisions about her reproductive and sexual health nal Offences (Federal Territories) Act 1997.436 and access to appropriate services. The following section The government formulated the National Policy on Women describes the legal status of women and girls in Malaysia. in 1989, which recognizes poverty, lack of education, and, at times, culture and tradition, as obstacles to women’s progress.437 The A. RIGHTS TO EQUALITY AND NONDISCRIMINATION policy’s primary objectives are the following: The federal constitution of Malaysia prohibits discrimination ■ ensure that men and women share equitably in the against citizens on the grounds of religion, race, descent, place acquisition of resources, information, opportunities, and of birth, and gender in any law; in appointments to any public the benefits of development; and office or employment; in the administration of any law relat- ■ integrate women into all sectors of development in ing to property matters; or in the establishment of or engage- accordance with their capabilities and needs to enhance ment in a trade or employment.425 Gender was included as the quality of life; eradicate poverty, ignorance, and illit- an additional ground as a result of a 2001 amendment to the eracy; and ensure a peaceful, harmonious, and prosperous constitution; however, it does not extend to provisions regu- nation.438 lating personal laws applicable to women.426 One visible outcome of the policy was the inclusion of a The rights of Malaysian women are governed by provi- chapter on Women in Development in the Sixth Malaysia Plan sions in the federal constitution, Malaysian legislation, reli- (1991–1995). This was the first time the role of women in Malay- gious and customary laws, and international conventions to sia’s development was formally recognized and highlighted in a which Malaysia is a party. national development plan.439 The implementation of that chap- The federal constitution and specific national legislation ter of the plan was originally the responsibility of the Women’s guarantee women formal rights in a number of different Affairs Secretariat (known as HAWA),440 but is now under the spheres, including political participation, employment, edu- Ministry of Women, Family and Community Development.441 cation, health care, marriage, and divorce.427 In addition, over The National Action Plan for the Advancement of Women442 the last ten years and largely due to the efforts of the women’s was formulated to implement the women’s development policy, movement, specific legislation has been enacted or amend- and was approved by the cabinet in 1997. The action plan draws ed to address gender violence and promote gender equality. largely from the Beijing Platform for Action and outlines strate- These include the Domestic Violence Act 1994 (DVA)428 and gies and programs in areas of critical concern for women’s roles in amendments to the penal code’s rape provisions.429 the spheres of health, education and training, the economy, law, However, the recent case of Beatrice Fernandez v. Sistem Pen- power-sharing, the media, religion, culture, sports, and the fam- erbangan Malaysia & Anor illustrates the limitations of having ily. The main objectives of the Malaysian action plan are the only formal expressions of the right to equality. In that case, following: the Court of Appeal held that constitutional rights and guar- ■ strengthening the national mechanisms for women’s antees, including the right to equality, were enforceable by advancement; private citizens against the state only, and not between private ■ increasing awareness and sensitivity of the public and MALAYSIA PAGE 101

the government to women’s issues; and Prior to the establishment of the Women’s Ministry, the

■ activating NGOs to improve the efficiency and effec- Women’s Affairs Secretariat, created in 1983, was the lead tiveness of socioeconomic programs.443 government agency on women’s issues and was responsible The action plan identifies different ministries, agencies, and for ensuring the integration of women into the national NGOs that are responsible for instituting affirmative action development process.452 It also served as the secretariat for policies and other incentives to increase women’s opportunities the National Advisory Council on Integrating Women in for participation in social and economic life. The recommenda- Development, the oldest national institutional body for the tions contained in the action plan are in line with the broader advancement of women. The advisory council was estab- policies of national development plans.444 lished in 1976 in response to the World Plan of Action for the The strategic thrusts of the Eighth Malaysia Plan in the area Advancement of Women adopted at the First World Confer- of women and development are the following: ence on Women in 1975,453 which advocated the integration

■ increasing women’s participation in the labor market; of women into the development process.454 The advisory

■ providing more education and training for women to council is a multisectoral body made up of government and meet the demands of a knowledge-based economy and NGO representatives; it serves as a coordinating, consultative, facilitating women’s upward mobility in the labor mar- and advisory body to the government, and between the gov- ket; ernment and NGOs, on matters relating to women in develop-

■ fostering women’s involvement in business; ment planning and implementation.455

■ reviewing statutory measures that inhibit the advance- In addition to setting up mechanisms and policies spe- ment of women; ciﬁcally addressing women’s affairs, the government estab-

■ improving women’s health status; lished the Human Rights Commission of Malaysia in 1999.456

■ reducing the poverty rate among female-headed The commission has no enforcement powers, but has, households; in certain cases, brought to the government’s and the public’s

■ strengthening research activities that seek to increase attention what needs to be done to comply with human women’s participation in society and enhance their rights norms.457 well-being; and B. CITIZENSHIP ■ enhancing the national mechanisms and institutional The federal constitution grants mothers and fathers the right capacity for the advancement of women.445 to confer citizenship to their children born in Malaysia.458 Formal institutions and policies However, in the case of children born outside of the coun- The government established the Ministry of Women and try, the child is considered a citizen at birth only if his or her Family Development in 2001 as the national agency for pro- father is a citizen at the time of the birth.459 moting the advancement of women in the country.446 Among The federal constitution discriminates against foreign the ministry’s responsibilities are formulating and monitoring spouses of Malaysian women who want to acquire citizen- policies and programs that address issues relating to women ship. Whereas it provides that a foreign wife of a Malaysian and families; sensitizing policymakers about such issues; and man may apply for citizenship, there is no similar provision engaging in legal literacy and awareness-raising campaigns for allowing a foreign husband to acquire citizenship as a result women and the public at large.447 The ministry also oversees of his marriage to a Malaysian woman.460 implementation of the National Action Plan for the Advance- This dual treatment is premised on the view that upon ment of Women.448 marriage, a woman should follow her husband and not vice The ministry was merged with the Ministry of National versa.461 Some reprieve has been given to foreign husbands Unity and Social Development in May 2004 to form the of Malaysian women who are professionals and have applied new Ministry of Women, Family and Community Devel- for work permits.462 Furthermore, the Immigration Depart- opment (The Women’s Ministry).449 Among the bodies ment has recently announced that foreign wives who hold within the Women’s Ministry are the Department for Wom- social visit passes for at least three years are now allowed to en’s Development, the Community Welfare Department, work in Malaysia.463 Unfortunately, this policy has not been the NPFDB, the Community Welfare Foundation, and extended to foreign husbands. the Social Institute of Malaysia.450 The Women’s Ministry also includes the advisory bodies of the National Advisory C. MARRIAGE Council on Women and the National Council for Women The laws relating to marriage and family matters in Malaysia and Family Development.451 are governed by two distinct legal systems—civil law, which is PAGE 102 WOMEN OF THE WORLD:

applicable to non-Muslims, and Islamic or Syariah law, which husband. Official sources indicate that only 5% of Muslim applies only to Muslims. marriages in Malaysia are polygamous.476 NGOs estimate the The Law Reform (Marriage and Divorce) Act 1976 is the figure to be closer to 20%.477 principal piece of legislation governing marriage and divorce Generally, the man must obtain his existing wife’s writ- for non-Muslims. The act recognizes monogamous mar- ten consent before entering into another marriage, as well as riages464 and prescribes procedures for the solemnization and permission from the relevant Syariah court.478 In a number registration of such marriages. It does not affect the validity of states, four conditions must be fulfilled before a man may of any marriage solemnized under any law, religion, or custom take another wife:

prior to the date the act came into force, on March 1, 1982.465 ■ the proposed marriage must be “just and necessary”;

The minimum age for marriage under the act is 18 years ■ the husband must have sufﬁcient ﬁnancial means;

for both males and females.466 However, females who have ■ the husband must agree to accord equal treatment to attained the age of 16 may obtain permission to marry from the existing wife or co-wives; and

the chief minister of their state.467 The act also stipulates that ■ the proposed marriage will not cause darar sya- individuals under the age of 21 cannot marry without their rie (danger or harm) to the existing wife or co- father’s permission.468 wives.479 The act outlaws polygamy.469 There is no legal recognition The conditions for polygamy vary from state to state. In of marriage between two persons of the same sex in Malaysia. the state of Perak, for example, the husband need only make a Under the Married Women and Children (Maintenance) declaration before a Syariah court judge that “he shall be fair Act 1950, a married woman is entitled to claim reasonable to his wives” and obtain a certificate from the judge.480 In maintenance from her husband for herself and her children the states of Kelantan and Terengganu, permission from the during marriage if the husband neglects to support her, or Syariah court is the only requirement.481 Recently, the state refuses to provide for the family.470 Upon proof of either of of Perlis relaxed its polygamy laws, allowing Muslim men to the above situations, a court may order the husband to pay a enter into polygamous marriages without the consent of their monthly allowance as maintenance, with consideration for existing wives.482 Perlis’s polygamy registration fees have also the husband’s means, the family’s financial means, any physi- been made more affordable, and men need not undergo new cal or mental disability of the wife, and the standard of living marital instruction courses before marrying again, a require- enjoyed by the family.471 An illegitimate child is also entitled ment that is customary in other states.483 The state govern- to claim maintenance from his or her father under the act.472 ment of Selangor, on the other hand, has recently tightened Marriage between Muslims the procedure for polygamous marriages,484 and requires that The Islamic Family Law (Federal Territories) Act 1984 courts receiving applications for polygamy hear testimony applies to matters of marriage among Muslims in the Fed- from the applicant husband, his existing wife, his future wife, eral Territories of Kuala Lumpur, Labuan, and Putrajaya.473 and her wali (male guardian) so the judge can determine Although each Malaysian State has its own set of Islamic whether the proposed marriage is “just or necessary.”485 laws, the basic principles are the same in all jurisdictions with In an attempt to give Muslim Malaysian women additional regard to family law for Muslims, and are enshrined in the protection in marriage, the Islamic Family Law (Federal Terri- various state legislations. The Islamic Family Law (Federal tories) Act 1984 allows women to include a stipulation (ta’liq) Territories) Act 1984 establishes a minimum age for marriage in their marriage contract, such as a “no-polygamy” clause.486 of 18 for males and 16 for females. However, females under the With that stipulation, a woman is entitled to a divorce if her age of 16 may marry under “certain circumstances” with the husband takes another wife.487 written permission of a Syariah court judge;474 the act does Native customary or aboriginal law governs marriages not define the “certain circumstances” under which such a between indigenous peoples, unless they elect to marry under marriage would be permitted, however. the Law Reform (Marriage and Divorce) Act 1976.488 Some Generally, a valid Islamic marriage requires the consent customary laws provide indigenous women with stronger of both parties. The states of Kelantan, Kedah, and Melaka, legal status than that accorded by civil law. For example, however, legally recognize the marriage of a young woman according to adat, the customary law of the Iban indigenous forced to marry by her father or paternal grandfather, accord- people of Sarawak, marriage is by mutual consent and no ing to the doctrine of ijbat.475 dowry is paid.489 Bigamy is also prohibited, and the fine Laws in various states permit Muslim men to marry up imposed for the offense of bigamy is the same for both men to four wives. Women are not allowed to take more than one and women.490 MALAYSIA PAGE 103

D. DIVORCE Syariah court under the procedure established by the Islamic Under the Law Reform (Marriage and Divorce) Act of 1976, Family Law (Federal Territories) Act 1984505 and various state married couples may petition for divorce either by mutual Islamic Family Laws.506 The court summons both parties and consent or by contested petition. The act requires all divorces inquires into the matter, after which the divorce will be regis- to be registered.491 In order to obtain a divorce by mutual tered and effective upon the court’s consent.507 consent (by way of joint petition),492 the parties generally Syariah family law, as codified in the Islamic Family Law must have been married for at least two years and domiciled (Federal Territories) Act 1984, allows a marriage to be dis- in Malaysia at the time of the petition.493 The marriage must solved by several types of divorce, some initiated by either also be registered under the act or a law that provides for spouse, and some by only the husband or the wife. These monogamous marriage.494 include talaq (repudiation by the husband), khul’ (payment by Either party to a marriage may also petition for a divorce on the wife in return for her release from the marriage contract), the ground that the marriage has irretrievably broken down.495 ta’liq (delegated repudiation by the wife as stipulated in the The marriage duration, domicile, and registration require- marriage contract), or fasakh (judicial dissolution of the mar- ments in these types of divorces are similar to those for divorce riage).508 Divorce by lian (accusation of adultery), where the by mutual consent.496 In addition, the party must prove at husband affirms under oath that his wife committed adultery least one of the following as proof of marital breakdown: and she affirms under oath to the contrary, is also provided for 509 ■ one party has committed adultery and the other party under the act. finds it intolerable to live with his or her spouse; The most common procedure for divorce is talaq. A man

■ one party has behaved in such a way that the other may divorce his wife with a unilateral pronouncement of cannot reasonably be expected to live with him or talaq with the permission of the court.510 If the wife does not her; consent to the divorce, or where it appears to the court that

■ one party has deserted the other party for a continu- there is a reasonable possibility of reconciliation, the court ous period at least two years before the date of his or will appoint a conciliatory committee.511 In practice, Syariah her petition; or law is often disregarded and men regularly pronounce talaq

■ both parties have lived apart from each other for a without the court’s permission. Although this constitutes an continuous period of at least two years before the offense,512 such pronouncements of talaq outside the court date of the petition.497 may still effectively terminate a marriage and may be recog- A man or woman may also petition for divorce if his or nized by the courts.513 The offense is punishable under the act her spouse has converted to Islam, so long as the petition is with a fine of up to RM 1,000 (USD 263) or imprisonment presented before three months from the date of the conver- of up to six months, or both,514 although punishment is rarely sion.498 However, there is no requirement that the marriage meted out.515 has to have lasted for at least two years.499 There are three main ways in which a woman may In general, the petitioner also needs a certificate from a seek to dissolve her marriage. The first is divorce by khul’, conciliatory body or marriage tribunal attesting that recon- whereby the woman pays her husband tebus talaq, an amount ciliation has been attempted and failed.500 Exemptions may of money to reimburse him for the dowry that was paid apply under certain circumstances specified in the act.501 to her when they were married.516 This form of divorce The Law Reform (Marriage and Divorce) Act 1976 pro- is only available where both parties agree to a divorce. A vides for the right of a wife or former wife to receive main- woman cannot herself effectuate a khul’ divorce but must do tenance from her husband during proceedings for judicial so through the court. separation or divorce.502 The court may order the husband Under a ta’liq divorce, a woman has the right to divorce her to pay an amount of maintenance according to the “means husband if he violates one of the conditions listed in the ta’liq and needs of the parties, regardless of the proportion such agreement (stipulations in the marriage contract) agreed upon maintenance bears to the income of the husband.” The court at the time of the marriage.517 These conditions may include also considers the degree of responsibility of each party for desertion, failure to pay maintenance, and harm caused to the the breakdown of the marriage.503 The right to receive main- wife’s person. Upon a woman’s petition, a court will make an tenance ceases upon the wife’s remarriage or her commission inquiry into the validity of the divorce and, if satisfied, con- of adultery.504 firm and record the divorce.518 Divorce laws governing Muslims Fasakh is the dissolution or rescission of a contract of mar- Muslim women or men who seek divorce may petition a riage by judicial decree.519 There are 12 grounds upon which a PAGE 104 WOMEN OF THE WORLD:

married woman is entitled to obtain a fasakh divorce,520 includ- Divorce laws governing indigenous peoples ing when her marital consent was coerced or invalid, cruelty Native customary or aboriginal law governs divorce among by the husband, the husband’s impotence or refusal to have indigenous peoples, unless they elected to marry under the sexual intercourse after at least four months of marriage or for Law Reform (Marriage and Divorce) Act 1976.535 Custom- at least a year, and the husband’s infection with an STI.521 The ary laws are often much more liberal in the rights they afford grounds for fasakh may vary among states.522 Under Islamic than civil law. Among the Batek peoples, for example, either Family Law (State of Selangor) Enactment No. 2 of 2003, hus- spouse can initiate divorce simply by leaving.536 bands have been afforded the right to a fasakh divorce, in addi- Parental rights tion to their traditional right to talaq divorce.523 Under the Law Reform (Marriage and Divorce) Act 1976, A controversial recent decision by a Syariah court to allow courts may, at any time, place a child in the custody of either a Muslim man to pronounce talaq via a mobile telephone text parent.537 Where there are exceptional circumstances making message has been condemned by women’s groups and the it undesirable for the child to be placed with either parent, the head of the Ministry of Women, Family and Community child may be placed in the custody of a relative, another suit- Development.524 The prime minister has indicated that laws able person, or a child welfare organization.538 In determin- may need to be amended to discourage men from divorcing the most suitable guardian, the foremost consideration of ing their wives by means of electronic messages.525 Another the court is the welfare of the child.539 The court next consid- new development is the decision of Jabatan Kemajuan Islam ers the wishes of the parents, and then the wishes of the child, Malaysia (Department of Islamic Development Malaysia) and if he or she is capable of having an independent opinion.540 the State Religious Departments to introduce a mandatory Where a child is under the age of seven, the presumption of sentence against husbands who divorce their wives outside custody is with the mother, unless she is proven to be unfit.541 the court.526 Older children’s wishes may be considered if the court finds A divorced Muslim woman is entitled under Syariah law, the children to be mature enough to understand the implica- as codified in the Islamic Family Law (Federal Territories) Act tions of their decision.542 1984 and state Islamic Family Laws, to reasonable mainte- In awarding custody, a court may impose certain condi- nance from her husband.527 This right is afforded only during tions, including conditions of residence, education and reli- the period of iddah (the generally three-month period follow- gion; temporary guardianship with someone other than the ing the dissolution of marriage during which the legal rights legal guardian; and mandated visits and rights to access the and obligations of the spouses are not wholly extinguished child for the parent or relatives who are not granted custo- and, particularly, where a widow or divorcee is not allowed dy.543 The granting of custody may also prohibit the legal to remarry528), and terminates earlier if the woman is living guardian from taking the child out of Malaysia.544 in adultery.529 The act’s provisions are similar to those of the Amendments to the Guardianship of Infants Act 1961 in Law Reform (Marriage and Divorce) Act 1976—i.e., main- 1999 granted equal rights to mothers as the guardians of the tenance is assessed mainly on the means and needs of the infant’s person and property.545 The act applies to non-Mus- parties, regardless of the relationship the maintenance amount lims, although it is stipulated that it can apply to Muslims in bears to the income of the husband.530 A wife is not entitled states that adopt this federal act. to maintenance where she is nusyuz, that is, where she unrea- Parental rights laws governing Muslims sonably refuses to obey the lawful wishes of her husband.531 The Islamic Family Law (Federal Territories) Act 1984 Under Syariah law in Malaysia, the concept of nusyuz is appli- includes provisions relating to the custody of children in cable only to women, although the Quran refers to nusyuz by cases of divorce among Muslims.546 Under the act, custody the husband as well.532 of a child below the age of mummaiyyiz (puberty) goes to the In addition to the right to apply for maintenance, the mother, while a child above the age of mummaiyyiz has the Islamic Family Law (Federal Territories) Act 1984 provides right to choose between the mother and father.547 The act that a woman who has been divorced without just cause enumerates several circumstances where the mother loses her may apply to the court for mut’ah (compensation).533 The hadanah (custody of a child), including where the mother has amount is normally agreed upon by both parties. In the remarried and her remarriage would affect the welfare of the absence of such an agreement, the judge will determine the child.548 In contrast, men do not lose custody under any cir- amount in consideration of the financial position and circumstances if they remarry. The woman’s right of hadanah is cumstances of the wife and the family’s financial and social also lost by her gross and open immorality,549 by her changing standing.534 residence to prevent the father from exercising supervision MALAYSIA PAGE 105

over the child,550 by her abjuration of Islam,551 and by her A woman’s right to inheritance is also determined by her neglect of or cruelty to the child.552 In the case of illegitimate marital status. Under the Islamic Family Law (Federal Ter- children, the right of custody lies solely with the mother.553 ritories) Act 1984, a divorced Muslim woman may claim her Fathers are not required under the act to maintain their “ille- share in any property jointly acquired during the marriage gitimate” children.554 upon dissolution of the marriage.568 The general rule is that if The Islamic Family Law (Federal Territories) Act 1984 also the woman has directly contributed to the acquisition of the addresses parental rights issues outside of custody matters. property, she is entitled to one-half, as illustrated in the 1982 For example, it grants fathers the exclusive and uncondi- case of Mansjur v. Kamariah (Federal Territory Syariah Board tional right to make decisions about the person and property of Appeal).569 However, if she has contributed indirectly, she of their minor children.555 The mother cannot be the guard- is entitled to one-third of the property, as shown in the 1985 ian of her child unless she is appointed by the father’s will or High Court decision of Boto v. Jaafar570 and the 1989 Special a court order.556 In practical terms, this has caused many dif- Appeal Committee decision of Rokiah v. Mohd. Idris (Federal ficulties for women who have custody of their children upon Territory Syariah Board of Appeal).571 Syariah courts have the divorce.557 Because of women’s lack of guardianship rights power to divide any assets that were jointly acquired by the over their children, formal matters that require the consent and couple during their marriage, or to order the sale of the assets signature of legal guardians, such as registering children for and the division of the proceeds between the couple.572 school and applying for identity cards, can become problematic Generally, women in Malaysia have the same rights as men for divorced mothers.558 The states of Johor, Selangor, Negeri to own, acquire, manage, and dispose of property; these rights Sembilan, and Pahang have announced their decision to adopt do not change upon marriage.573 For both men and women, the amendment from the Guardianship of Infants Act 1961 that disposal of property requires the consent of the spouse only if gave women equal guardianship rights into their respective the wife has a share or interest in the property.574 Syariah legislation.559 If enacted, this amendment will grant Rights to agricultural land legal recognition to the parental rights of mothers.560 Rural women in Malaysia have the right to own and inherit A cabinet directive issued in 2000 gives Muslim and non- land.575 Muslim women are eligible to inherit land based on Muslim mothers the right to sign all documents related to Syariah law.576 Under the Land (Group Settlement Areas) their children,561 although it does not confer the same rights Act 1960, a wife or ex-wife is entitled to co-own land that was of guardianship on Muslim women as does the amended developed under the Federal Land Development Agency land Guardianship of Infants Act 1961. reform program,577 which was established in 1956 to alleviate increasing rural poverty by granting agricultural holdings to E. ECONOMIC AND SOCIAL RIGHTS the rural landless.578 However, the agency grants land titles Ownership of property and inheritance only to men as household heads.579 The federal constitution prohibits discrimination against citi- Labor and employment zens “… in any law … or in the administration of any law According to 2003 data, women constitute approximately relating to the acquisition, holding or disposition of property 35.9% of the labor force.580 Among women who work, 17.7% ….”562 Inheritance for non-Muslims is generally governed hold clerical jobs; 17.4% are service workers in shop and mar- by the Inheritance (Family Provision) Act 1971 and the Dis- ket sales; 12.1% are plant and machine operators and assem- tribution Act 1958.563 The Distribution Act was amended in blers; 10.4% are skilled agricultural and fishery workers;581 and 1997 so that both husband and wife have equal inheritance 6.4% are professionals.582 Experts have noted that women rights.564 The 1997 amendments removed the distinction are still disproportionately concentrated in the lower rungs between wives and husbands in the distribution to the surviv- of the workplace hierarchy and perform lower level work.583 ing spouse of the estate of an intestate.565 Prior to the amend- Unequal career opportunities for women, gender stereo- ment, a wife who survived her husband was entitled to only typing, sexual harassment, lack of child-care facilities, and one-third of her husband’s estate, whereas a surviving husband inflexible working hours have been cited as impediments to was entitled to his wife’s entire estate. women’s full participation in the workforce. In the Islamic system of succession, while the surviving Migrant workers constitute a significant proportion of the parents, spouse, and offspring of a deceased all inherit, the workforce. The Immigration Department estimates that there amounts they inherit differ.566 The general rule is that the are over two million foreign workers in Malaysia, 160,000 of share of a man is double that of a woman in the same degree whom are domestic workers.584 Female migrant workers of relationship.567 are reportedly the most marginalized and unprotected labor PAGE 106 WOMEN OF THE WORLD:

group in the country. The Immigration Department approves, renews, or rejects The federal constitution prohibits discrimination against applications for a work permit on the basis of these medical citizens in any law or appointment to any office or employ- test results. Any worker who tests positive for any of the listed ment under a public authority, or in establishing or engaging diseases (including HIV/AIDS), pregnancy, or illicit drugs does in any trade, business, profession, vocation, or employment. not obtain a renewal and faces immediate deportation.601 There is no specific legislation to protect against gender- Access to credit based discrimination in the recruitment, placement, remu- The Banking and Financial Institution Act 1989602 and neration, training, and promotion of women in jobs in the other related banking financial legislation do not formally public sector.585 discriminate on the basis of gender. Loan and credit schemes The Employment Act 1955 provides the main legal frame- operated by banks are not gender-biased and are based on the work governing matters such as wages, hours of work, ben- evaluated risk of applicants, both men and women. Nev- efits, and other work-related matters.586 The act does not ertheless, according to an unofficial country study, women make reference to gender, although some provisions apply appear to take out comparatively smaller loans than men; this exclusively to women. For example, the act prohibits the implies that women have less access to credit facilities,603 pre- employment of women for night work, unless permitted by sumably due to the requirement of collateral, which can be an the director general of the Labour Department on the basis obstacle for women seeking loans. Furthermore, women in of an employer’s request.587 It also generally prohibits under- business in the informal sector604 have little or no access to ground work for women.588 loan capital from financial institutions due to requirements Under the Employment Act 1955, a female employee in and procedures that favor the formal sector and are biased the public or private sector is entitled to 60 consecutive days against women.605 of maternity leave.589 Unless she is receiving her monthly The Amanah Ikhtiar Malaysia project was initiated in wages during maternity leave, a female employee is entitled to 1987 as Malaysia’s first microcredit scheme. Membership a maternity allowance at a rate of either her ordinary pay or at is restricted to low-income individuals606 and the project’s least RM 6 per day (USD 1.6), whichever is higher.590 How- interest-free loans favor women. Small loans of up to RM ever, a woman with five or more children is not entitled to 10,000 (USD 2,632) are given with no requirements for col- any maternity allowance.591 The act also prohibits employers lateral or a guarantor.607 One specific loan project targets from dismissing a female employee while she is on maternity single mothers who are either divorced or widowed to help leave.592 Despite these provisions for maternity leave,593 how- them support their children through operating their own ever, observers have noted that Malaysian employment laws businesses.608 are inadequate in terms of requiring employers in the public Other loans for women are made available through the Loan sector to provide nursing breaks and care facilities for nursing Fund for Hawkers and Petty Traders and the Small Entrepre- mothers, and crèches at workplaces. The government has neur Fund managed by the Credit Guarantee Corporation to provided tax relief incentives to the private sector to encour- provide assistance to small and micro-enterprises.609 age the provision of on-site child-care facilities.594 However, Under the Special Assistance Scheme, administered by such facilities are not mandatory.595 the Ministry of International Trade and Industry, businesses The Employment Act was amended in 1988 to provide for owned or headed by women receive soft loans and financial flexible working hours and allow benefits for part-time work- assistance for projects in the form of fixed assets and workers similar to those for full-time workers.596 ing capital.610 Furthermore, the Micro-Credit Scheme of The government has attempted to introduce gender equal- Bank Simpanan National offers training and guidance for ity at all levels of employment through its policies on labor and women entrepreneurs.611 the workforce. Government policy calls for increased oppor- Other microcredit programs are operated by bodies such tunities for women in training and professional advancement, as Yayasan Usaha Maju (The Development Foundation) and equal pay for work of equal value, the integration of women the Yayasan Pemnbagunan Terengganu (Terengganu Devel- into the mainstream of development, and women’s increased opment Foundation).612 participation in the job market.597 Education Foreign workers who wish to obtain a work permit in According to the 1991 Population and Housing Census, Malaysia must undergo a full medical test.598 All foreign 90% of males were literate, compared with 80% of females.613 workers also need a mandatory annual medical exam to renew Among young people aged 15–24 years, the literacy gap their work permit,599 pursuant to the Immigration Act 1959.600 between the sexes is almost nonexistent, with discrepan- MALAYSIA PAGE 107

cies between the sexes increasingly more pronounced in ■ intensifying efforts to develop and promote Malaysia 629 older age groups.614 Official data from 2000 indicate that as a regional center of educational excellence. the proportion of students who are female in government Proposed strategies and activities to support these goals schools increases from 48.6% of total enrollment at the pri- include the following: mary-school level to 52.8% at the upper secondary-school ■ expanding and upgrading existing educational and level.615 This gender gap continues and even widens in insti- training institutions, and establishing new institutions 630 tutions of higher education. As of June 2000, there were 1.4 in the public and private sectors; million females in public primary schools, compared with 1.5 ■ increasing the involvement of the private sector in the 631 million males;616 984,444 were enrolled in public secondary provision of education and training; schools, compared with 958,152 males;617 and 189,000 females ■ undertaking efforts to increase the accessibility of 632 were studying in public tertiary institutions, compared with education to students in rural areas; 155,000 males.618 Over 20% of the annual national budget is ■ reassessing programs at the primary-school level that allocated to education.619 target low-income students—e.g., programs offering Although access to education in general is not a problem food supplements, loans of textbooks, and financial for women, gender segregation arising from stereotyping is assistance—to ensure that these students are benefit- 633 still apparent in specific courses. Experts have noted that ing from the programs; women are still more likely to enroll in courses traditionally ■ providing women with more opportunities in educa- considered more suitable for women, such as service-orient- tion and training to facilitate their upward mobility 634 ed courses linked to the hotel and catering industry, tourism, into higher-paying positions; and and public relations.620 Women are grossly underrepresented ■ implementing career counseling programs to encour- in the disciplines of science, technology, and engineering.621 age more women to pursue nontraditional fields of The management and policymaking levels of the education study, such as science, engineering, and vocational 635 system also remain male dominated, although the gender and technical education. composition of teachers and lecturers shows that the major- Sex education ity at all levels are female (more than 70%),622 and that many Adolescent sexual and reproductive health education has female teachers are increasingly more qualified than male been integrated into the school curriculum, and elements of teachers.623 it are taught through existing courses such as physical and The federal constitution guarantees free basic education for health education, science, biology, and moral and Islamic 636 both boys and girls.624 The Ministry of Education provides education. The Ministry of Education introduced ele- 11 years of free basic education.625 The Education Act 1996, ments of “family health education” to primary-school chil- 637 as amended in 2002, makes primary education compulsory dren in physical and health education classes in 1994. The for all children who have attained the age of six years, regard- aim of such education is to enable students to obtain knowl- less of their sex.626 Parents who fail to enroll their children edge regarding the physical, emotional, and social changes in school are subject to a fine of RM 5,000 (USD 1,316) or they undergo; the instruction also gives them the skills to imprisonment of six months.627 cope with these changes and maintain healthy relationships The Eighth Malaysia Plan articulates some of the current with family members, friends, and other members of the 638 policy objectives of the government in the area of education. community in which they live. Health education strives Education is generally addressed in the context of investing to provide students with the knowledge, skills, and values in human capital in order to ensure the growth and strength to prepare them for the responsibilities and rigors of adult of the economy.628 The plan’s key policy thrusts relating to life, marriage, and parenthood, and to deal with social rela- 639 education include the following: tionships in the context of family and society. The three main topic areas in family health education are the human ■ increasing accessibility to quality education and training to enhance income generation capabilities and body, personal and family health, and moral and religious 640 quality of life; values. In practice, teachers have shied away from teaching family ■ improving the quality of education and training to ensure that the manpower supply is in line with tech- health education or are not skilled in dealing with what are nological change and market demand; deemed sensitive issues. Such education is also assigned to teachers who are untrained in this subject area, which often ■ promoting lifelong learning to enhance the employ- 641 ability and productivity of the workforce; and means they neglect to teach it. PAGE 108 WOMEN OF THE WORLD:

F. PROTECTIONS AGAINST PHYSICAL AND SEXUAL The legal penalties for rape are mandatory imprisonment VIOLENCE of 5–20 years and whipping.649 The penal code, the DVA, and the Syariah Criminal Offences The evidentiary requirements for rape make it difficult for (Federal Territories) Act 1997 provide the substantive legal the prosecution to secure a conviction. It is a well-established framework for crimes of violence against women and girls. rule of practice in Malaysia that evidence presented by a The first two apply to non-Muslims and Muslims alike, while complainant in a sexual offense case must be corroborated,650 the last applies only to Muslims. Certain forms of physical although there is no such statutory requirement. The law and sexual violence are addressed through two or more of does, however, require corroboration of evidence given by the above stated laws. The federal constitution is clear in that a young child; uncorroborated evidence by such a witness is where the Syariah Court has jurisdiction, the “civil” courts not sufficient for conviction.651 Generally, in order to establish shall have no jurisdiction.642 However, in practice, crimes the issue of consent, the burden of proof falls on the victim such as rape and incest tend to be prosecuted in civil courts. to prove that she put up some form of resistance or struggled Rape with the offender during the rape.652 Where there is no The penal code defines and prescribes the punishments for evidence of physical injury, the assumption is that the rape rape, while the Criminal Procedure Code and the Evidence did not occur.653 Act 1950 provide the procedural and evidentiary rules for the In 1988, the Evidence Act was amended to disallow the prosecution of rape. examination of the rape victim’s past sexual history or the The penal code defines rape as sexual intercourse by a man introduction of evidence of her past sexual practices.654 How- with a woman under any of the following circumstances: ever, the act still permits the accused person’s counsel to cross-

■ against her will or without her consent; examine the victim on previous sexual activity between the

■ through consent obtained through coercion or fraud, victim and the accused. or uninformed consent; or In July 2002, a controversial bill on hudud (Islamic criminal

■ with or without her consent when she is under the law) was passed in the state of Terengganu. Under this bill, age of 16 (except where the irrebuttable presumption which has been given the royal assent by the state’s sultan but of law applies in which a boy under the age of 13 is has yet to be enforced, the burden of proof for rape is shifted incapable of committing rape),643 or where the rapist from the perpetrator to the victim, who must produce four is the victim’s lawful husband.644 credible witnesses (four “good” Muslim males) to prove her Only vaginal penetration by the penis constitutes rape innocence. If she is unable to do so, she may be found guilty under the deﬁnition of the penal code. If objects other than of “slanderous accusations” and punished with 80 lashes.655 the penis are used, the act is deemed to be “assault with intent An unmarried woman who is pregnant is assumed to have to outrage modesty,”645 which carries a lighter punishment committed zina (unlawful carnal intercourse or illicit sex), than rape.646 even if she has been raped, and faces a punishment of 100 The penal code does not recognize marital rape as a crimi- lashes. A married woman convicted of zina may be stoned nal offense. The code provides that “sexual intercourse by a to death.656 man with his wife by a marriage which is valid under any In order to protect rape victims under the age of 18 from written law for the time being in force, or is recognised in the media attention or exploitation, the Subordinate Courts Act Federation as valid, is not rape.”647 However, there are three 1948657 allows rape cases to be held in camera and prevents the instances in which a man who has nonconsensual sex with his victim’s identity and personal details from being revealed in wife can be charged with rape: the press.

■ where the wife is living separately from her husband Incest under a decree of judicial separation; The penal code and the Syariah Criminal Offences (Fed-

■ where the wife has obtained an injunction restraining eral Territories) Act 1997 both criminalize incest. The penal her husband from having sexual intercourse with her; code was amended in 2001 to include the crime of incest, and which is deﬁned as sexual intercourse between two individu-

■ in the case of a Muslim woman living separately from als who are within the prohibited degrees of relationship for her husband during the period of iddah, which is marriage under the “law, religion, custom, or usage” appli- approximately three months.648 cable to them.658 The offense is punishable with imprison- There are no provisions under the penal code for aggra- ment of 6–20 years and perpetrators “shall also be liable to vated rape (e.g., gang rape or the rape of a pregnant woman). whipping.”659 The code affords the accused a defense if it MALAYSIA PAGE 109

is proved that he or she was unaware that the person with ■ causing mischief, or destruction of or damage to whom he or she had sexual intercourse was within the pro- property, with intent to cause or knowing that it is 673 hibited degree of relationship for marriage, or that the act of likely to cause distress or annoyance to the victim. sexual intercourse was nonconsensual.660 The code deems a Victims of dating violence are not protected under the female under the age of 16 and a male under age 13 incapable DVA. of giving consent.661 Like rape, incest has been given a nar- Given that the act is to be read with the penal code, and row interpretation to cover acts of sexual intercourse only. that the penal code does not recognize marital rape, married In January 2003, the government announced its decision Malaysian women are left with the anomalous position of to amend the penal code and increase the punishment for being protected from domestic violence but not marital rape. incest to 15–30 years in prison and 10 lashes.662 To improve Also, mental, psychological, and emotional forms of domestic 674 the reporting of incest, the code is also being further violence do not fall within the ambit of the DVA. amended to punish individuals who fail to report incest Most of the domestic violence cases in Malaysia are classi- with imprisonment of three years.663 The Registration of fied by the police as Section 323 offenses under the Criminal 675 676 Criminals and Undesirable Persons Act 1969 is also being Procedure Code, or as “non-seizable” offenses. Conse- amended to provide for the registration of incestuous rape and quently, the police may not investigate such cases without incest offenders.664 According to media reports, yet another specific orders from the deputy public prosecutor, nor can proposed amendment seeks the death penalty for incest that they arrest offenders without a warrant nor obtain an interim 677 results in the victim’s death.665 protection order. The Syariah Criminal Offences (Federal Territories) Act An interim protection order and a protection order are two 1997 punishes incest with a maximum penalty of three years’ possible forms of protection for victims of domestic violence. imprisonment, a whipping of six lashes, a fine of RM 5,000 The former may be issued against an offender while investi- (USD 1,316), or any combination thereof.666 gations are pending, while the latter is appropriate when the 678 Domestic violence offender is undergoing criminal proceedings. The DVA The DVA was enacted specifically to provide recourse for outlines the circumstances under which either order may be 679 persons suffering from domestic violence.667 It offers protec- sought. A protection order offers the more comprehensive tion for victims of domestic violence pending investigation protection of the two, since it protects the victim against vio- 680 or other criminal proceedings in court.668 It is applicable to lence by the perpetrator and third parties, and prohibits all non-Muslims and Muslims, but its protection does not spe- communication and access to the victim’s residence or place 681 cifically extend to foreign domestic workers.669 of employment, school, or other institution. If the court The act does not make domestic violence a separate crime is satisfied that the offender is likely to cause physical injury 682 punishable with new penalties. Rather, it enumerates various to the victim, it may attach an arrest warrant to the order. behaviors that constitute domestic violence, and stipulates that Instead of or in addition to issuing a protection order, the the DVA should be read together with relevant provisions of court may also order the parties to undergo counseling and 683 the penal code to assess the appropriate punishment.670 attempts at conciliation. Under the DVA, a victim of domestic violence can be Under the DVA, a victim may claim compensation for an immediate, former, or de facto spouse;671 a child; an any personal injury, property damage, or financial loss result- 684 “incapacitated” adult;672 or any other member of the family. ing from domestic violence. In considering such a claim, Among the acts that constitute domestic violence are the the court may take into account the victim’s pain and suffer- following: ing, the extent of any physical or mental injury suffered, the cost of medical treatment for any injuries, any loss of earn- ■ willfully or knowingly placing, or attempting to place, the victim in fear of physical injury; ings, the value of any property damage, and the necessary and reasonable expenses incurred by the victim in cases where ■ causing physical injury to the victim by such an act that is known, or ought to have been known, to result the victim and the offender must be separated as a result of 685 in physical injury; domestic violence. Women’s groups have expressed concern about the effec- ■ compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which tive implementation of the act, and have submitted recom- 686 the victim has a right to abstain; mendations for amendments to the government. However, the government has yet to take any action to review the act ■ confining or detaining the victim against his or her 687 will; and despite promises to do so. PAGE 110 WOMEN OF THE WORLD:

Sexual harassment cedures for sexual harassment victims, the Joint Action Group There is no specific legislation addressing sexual harass- against Violence against Women,700 a coalition of women’s ment. Acts relating to sexual harassment are dealt with under organizations, launched a campaign for a sexual harassment the penal code. The code makes it a crime to intentionally law. The campaign culminated in the submission of the pro- “insult the modesty of any woman” through words, sounds, posed Sexual Harassment Bill to the Ministry of Human gestures, or by exhibiting any object. The offense is pun- Resources in March 2001.701 The bill requires employers to ishable with imprisonment of up to five years or a fine, or prevent sexual harassment and provides victims with concrete both.688 Another provision of the penal code criminalizes access to legal redress. assault or the use of force toward another person with the Commercial sex work and sex-trafficking intent to “outrage the modesty” of that person.689 This crime The penal code and the Syariah Criminal Offences (Fed- is punishable with imprisonment of up to ten years, a fine or eral Territories) Act 1997 deal with crimes relating to prosti- whipping, or any two of these punishments. tution. Under the penal code, an individual who “solicits or The burden of proof for a charge of harassment lies with importunes” for the purpose of prostitution or “any immoral the prosecution, who must prove the act and the harasser’s purpose” in any place is subject to punishment of one year’s intention beyond a reasonable doubt.690 imprisonment or a fine, or both.702 The Syariah Criminal Complainants of sexual harassment may also seek civil Offences (Federal Territories) Act 1997 specifically outlaws legal redress under industrial law or tort law. Neither the prostitution. It prescribes punishments for women who work Employment Act 1955 nor the Industrial Relations Act 1967 as prostitutes,703 as well as other persons who prostitute their explicitly refers to “sexual harassment.” Complainants must wife or a female child under their care, or cause or allow their thus pursue redress through an existing cause of action, such wife or a female child under their care to prostitute them- as for misconduct. In the landmark 1998 case of Lilian Therera selves.704 Both offences are punishable with imprisonment De Costa v. Jennico Associates Sdn. Bhd,691 the Industrial Court692 of up to three years, a fine of up to RM 5,000 (USD 1,316), a held, among other things, that in industrial matters, the bur- whipping of up to six lashes, or any combination thereof.705 den of proof is on the complainant, and allegations of sexual There are no comprehensive anti-trafficking laws in harassment must be corroborated.693 Malaysia, although the federal constitution prohibits slavery706 In 1999, the Ministry of Human Resources issued the and all forms of forced labor.707 There are also provisions in Code of Practice on the Prevention and Eradication of Sexual the penal code that criminalize trafficking-related acts. For Harassment in the Workplace.694 This code defines sexual example, the code criminalizes the import, export, removal, harassment as “any unwanted conduct of a sexual nature hav- buying, selling, disposing of a person as a slave, or habitually ing the effect of verbal, non-verbal, visual, psychological, or trafficking or dealing in slaves;708 the exploitation of any per- physical harassment (i) that might, on reasonable grounds, be son for the purpose of prostitution;709 the act of knowingly perceived by the recipient as placing a condition of a sexual living on the earnings of another person’s prostitution;710 the nature on her/his employment; or (ii)…an offence, humili- act of keeping, managing, or assisting in the management of a ation, or a threat to her/his well-being, but has no direct brothel, as well as knowingly allowing any place to be used as link to her/his employment.”695 The code of practice also a brothel;711 and forced labor.712 provides general guidelines on penalties and disciplinary rules The Immigration Act 1959/1963,713 the Restricted Resi- for offenses; it requires that offenders be disciplined,696 and dence Act 1933 (Revised 1989),714 and the Internal Security that the nature and type of penalty depend upon the severity Act are among the laws that are used to prosecute traffick- of the offense.697 ers. It has been reported, however, that rather than prosecut- Although the code of practice has been effective in broad- ing traffickers, police generally arrest or deport individual ening awareness about the issue of sexual harassment, it has women who are trafficked for the purpose of prostitution.715 no legal force and its implementation has not been wide- NGOs report that Malaysian authorities often fail to distin- spread. Only 1.125% of the 400,000 registered companies in guish between trafficking victims and other undocumented the country have adopted the code.698 The code recommends migrants, and deport these victims rather than help them.716 the establishment of a separate complaint or grievance pro- These women are treated as illegal immigrants and are sub- cedure, which should include a step-by-step procedure for ject to harsh penalties under the terms of the Immigration reporting and processing a complaint in a timely fashion, and (Amendment) Act 2002.717 Penalties under that act include investigation and appeals procedures.699 imprisonment of up to five years, whipping and heavy fines.718 In response to the lack of adequate existing laws and pro- According to NGO reports, many foreign women currently MALAYSIA PAGE 111

serving terms in Malaysia’s prisons for illegal immigration are under certain circumstances, be deemed in need of “protec- actually victims of trafficking.719 tion and rehabilitation,”733 such as when the child is habitually At the Fifth Asian-African Legal Consultative Committee in the company of or controlled by brothel keepers or persons General Meeting held in Nigeria in July 2002, the Malay- connected with the business of prostitution.734 In such cases, sian government disagreed with the position that all persons the child will be sent to a place of refuge735 subject to the who are trafficked should be considered victims in need of Court for Children’s approval.736 protection and immune from prosecution.720 During that The Syariah Criminal Offences (Federal Territories) Act meeting, Malaysia reported that it was considering a more 1997 prescribes punishment for individuals who prostitute a comprehensive Witness Protection Act for persons who have female child under their care, or cause or allow such a child to been classified as “victims of trafficking” according to the prostitute herself.737 The offense is punishable with a fine of up Malaysian criteria. Presently, a trafficked person is considered to RM 5,000 (USD 1,316), imprisonment of up to three years, a victim only if he or she makes a police report that he or she whipping of up to six lashes, or any combination thereof.738 has been victimized.721 Customary forms of violence Female genital mutilation is practiced in Malaysia, especially among the Muslim community. However, little research is available in this area,722 and thus the prevalence of the practice is not accurately known. The custom is largely cultural and there is no law or policy regulating it. The prevalent form of female genital mutilation in Malaysia is clitoridectomy, which involves the removal of the clitoral prepuce, as opposed to infibulation practiced by many African communities.723 Sexual offenses against minors The Child Act 2001,724 the penal code, and the Syariah Criminal Offences (Federal Territories) Act 1997 are the key pieces of legislation with provisions addressing sexual offenses against minors. The penal code includes provisions for statutory rape (i.e., of girls under the age of 16) and incest. (See “Rape” for more information.) The Child Act 2001 makes it an offense to engage or hire minors for prostitution and immoral purposes, and imposes penalties for both first time and repeat offenders.725 Depend- ing on the nature of the offense, first-time offenders may be subject to a fine of up to RM 50,000 (USD 13,160) or imprisonment of 3–15 years, or both;726 their punishment may also include whipping of up to six lashes.727 Repeat offenders receive 6–10 lashes.728 The Child Act 2001 also criminalizes the unlawful transfer or the possession, custody, or control of a child, and the unlawful harboring of a child.729 Such offenses are punished with imprisonment of up to five years or a fine of up to RM 10,000 (USD 2,632), or both.730 A possible defense may be that the transfer of a child was pursuant to a bona fide marriage or adoption, and that at least one of the child’s natural parents or guardians had expressly consented to the marriage or adoption.731 The Child Act 2001 does not apply to foreign underage girls who are illegally trafficked into the country.732 The Child Act 2001 provides that an exploited child may, PAGE 112 WOMEN OF THE WORLD:

ENDNOTES

1. The island of Borneo is divided among three countries. The East Malaysian states 42. Id. art. 66(3), (4A). If the bill is passed in the originating house by a two-thirds vote of Sabah and Sarawak occupy most of the northern coast; the Sultanate of Brunei in the case of a constitutional amendment and a simple majority in other cases, then it is takes up a small section of that coast; and the lower two-thirds of the island belong to sent to the other house for similar approval. Id. art. 66(4A). The bill then passes into law Indonesia. See Central Intelligence Agency (CIA), U.S. Government, Malaysia, in upon the assent of the king or his inaction for 30 days. Id. art. 66(4A), (4B). The World Factbook (2005), http://www.cia.gov/cia/publications/factbook/geos/ 43. Id. 9th sched., list I, arts. 1, 4, 12–16. my.html (last modified Apr. 24, 2005); Commonwealth Secretariat, Commonwealth, 44. Id. list III, arts. 1–9A. Country Profiles: Malaysia, http://www.thecommonwealth.org/Templates/ 45. Bureau of East Asian and Pacific Affairs, supra note 2. YearbookHomeInternal.asp?NodeID=138656 (last visited May 11, 2005). 46. Malay. Const. arts. 121(1), (1B), (2), 122AA(1), 182. The Supreme Court was 2. Bureau of East Asian and Pacific Affairs, U.S. Department of State, created on Jan. 1, 1985 and was renamed the Federal Court in 1994. The Court of Appeal Background Note: Malaysia (Jan. 2005), http://www.state.gov/r/pa/ei/bgn/2777. was established in 1994, and the Special Court was established in 1993; Editorial htm. Comm., Malaysian Courts of Malaysia, Inaugural Report of the Superior and 3. Id. Subordinate Courts in Malaysia 16, 31, 35 (2004), http://www.kehakiman.gov.my/ 4. Id. buku_laporan/buku_laporan.html; Malay. Const. 9th sched., list III, arts. 1–9A. 5. Id. 47. Id. art. 128(2), (3). 6. Id. 48. The Federal Court is empowered by the constitution to make determinations on 7. U.S. Department of State, Country Reports on Human Rights Practices: questions “as to the effect of any provision of [the] Constitution…” arising before Malaysia 2004 (2005), http://www.state.gov/g/drl/rls/hrrpt/2004/41649.htm. Islam any court, or referred to it by the king for its opinion. Id. arts. 128(2), 130. It may also Hadhair or Civilizational Islam is a form of government in accordance with Islamic adjudicate whether a federal or state law is invalid on the ground that the legislative body principles. that enacted the law was not constitutionally empowered to do so. Id. art. 128(1)(a). 8. Bureau Of East Asian And Pacific Affairs, supra note 2. 49. Id. art. 128(1)(b). 9. Id. 50. Id. arts. 121(2)(a)–(c), 128(1)–(3), 130. The Federal Court may adjudicate appeals 10. Department of Statistics, Government of Malaysia, Population Clock, http:// against decisions of Court of Appeals in criminal cases or important civil cases initially www.statistics.gov.my/ (last visited May 13, 2005). decided by the High Court in exercise of its original jurisdiction. Courts of Judicature 11. World Bank Group, GenderStats: Summary Gender Profile for Malaysia Act 1964, No. 7, §§ 87, 96(a)–(b) (1964) (Malay.). (2002), http://genderstats.worldbank.org/genderRpt.asp?rpt=profile&cty=MYS,Mala 51. Id. pt. IX, art. 122(1). The Chief Justice was known as the Lord President prior to the ysia&hm=home. amendment to the Federal Constitution in 1994. 12. Bureau of East Asian and Pacific Affairs, supra note 2. 52. Id. pt. IX, art. 122(1); Editorial Comm., supra note 46, at 16. The king, under 13. Id.; Central Intelligence Agency (CIA), supra note 1. the advice of the Chief Justice may appoint additional members to the Federal Court. 14. Malay. Const. art. 3(1). Malay. Const. pt. IX, art. 122(1A). 15. Department of Statistics, Government of Malaysia, Population and Housing 53. Malay. Const. art. 125(1). Census 2000, § 12, http://www.statistics.gov.my/English/frameset_pressdemo.php; 54. Id. art. 122A(1). The Yang di-Pertuan Agong ordered the number of judges to be Bureau of East Asian and Pacific Affairs, supra note 2. increased to fifteen through the 2002 amendment to the constitution. Editorial 16. Central Intelligence Agency (CIA), supra note 1. Comm., supra note 46, at 35. 17. United Nations (UN), List of Member States, http://www.un.org/Overview/ 55. Malay. Const. pt. IX, art. 121(1B)(a); Courts of Judicature Act 1964, No. 7, §§ 50(1)– unmember.html (last visited Mar. 4, 2005). (2), 87, 96 (1964) (Malay.); Editorial Comm., supra note 46, at 40-43. http://www. 18. Commonwealth Secretariat, supra note 1; Organization of the Islamic kehakiman.gov.my/buku_laporan/buku_laporan.html (Aug. 5, 2004). Conference, Members, http://www.oic-oci.org/english/main/member-States. 56. Malay. Const. pt. IX, arts. 121(1), 122AA(1); Editorial Comm., supra note 46, at 54. htm (last visited May 11, 2005) (member since 1969, chair of 10th Summit in October 57. Not all decisions of subordinate courts may be tried at the High Courts, exceptions 2003); Non-Aligned Movement (NAM), Member States, http://www.nam.gov. include civil cases not involving a question of law where the amount in dispute is za/background/members.htm (last visited May 11, 2005) (Malaysia chaired the 13th less than RM 10,000. Courts of Judicature Act 1964, No. 7, §§ 26–29 (1964) (Malay.); Summit in February 2003); Asia-Pacific Economic Cooperation (APEC), Member Editorial Comm., supra note 46, at 64. Economies, http://www.apecsec.org.sg/apec/member_economies.html (last visited 58. Editorial Comm., supra note 46, at 55, 59. May 11, 2005) (member since 1993); World Trade Organization, Malaysia – Member 59. Malay. Const. pt. IX, art. 122B(1), (2), (4). The Prime Minister consults the Chief Information, http://www.wto.org/english/thewto_e/countries_e/malaysia_e.htm (last Justice and the Chief Judge of the relevant Court before rendering his advice to the king. visited May 11, 2005) (member since 1995); Association of Southeast Asian Nations 60. Id. art. 182. However, actions against the king or state rulers over anything done or (ASEAN), Member countries, http://www.aseansec.org/74.htm.(last visited May 11, not done in his personal capacity may only be initiated with the consent of the Attorney 2005). General. Id. arts. 182(3), 183; Editorial Comm., supra note 46, at 31. 19. Consideration of reports submitted by States parties under article 18 of Convention on the 61. Malay. Const. art. 182(1). Appointees must be current or past judges of the Federal Elimination of All Forms of Discrimination against Women (CEDAW), Combined initial and Court or the High Court. Id. second periodic reports of States parties, Malaysia, CEDAW Committee, para. 31, U.N. Doc. 62. Editorial Comm., supra note 46, at 32. CEDAW/C/MYS/1-2 (2004). 63. Id. at 91–92, 95, 115, 119. See Subordinate Courts Act 1948, No. 92, §§ 63–65, 85, 90 20. Malay. Const. art. 3(1). (1948) (Malay.). 21. Id. arts. 73(a)–(b), 74(1)–(4). 64. The Child Act 2001, No. 611, § 2 (2001) (Malay.); Editorial Comm., supra note 46, 22. Id. at arts. 32(1), 39, 41. at 124. 23. Id. art. 32(2). 65. Malay. Const. pt. IX, art. 121(1A). Civil courts have no jurisdiction in respect of any 24. Id. arts. 32(3), 38(1), (2a), 5th sched., art. 1. matter within the jurisdiction of the Syariah courts. Id. 25. Id. art. 33(1), (3). 66. CEDAW, Combined initial and second periodic reports of States parties: Malaysia, supra 26. Id. art. 43(2), (2)(a). note 19, para. 39. 27. Id. arts. 43(2)(a)–(b), 44. 67. Malay. Const. 9th sched., list I, art. 4(a), list II, art. 1. 28. Id. art. 43(1), (3). 68. Id. 9th sched., list II, art. 1. Twelve Malaysian states have adopted a version of the 29. Id. art. 55(1)–(2). Syariah Criminal Offences Act. It is pending approval from the senate in the 13th state, 30. Id. art. 42(1), (10). the Federal Territories. Malaysian States Standardize Shariah Laws, Spirithit News, 31. Id. art. 32(1). He is liable only to proceedings in the Special Court established in 1993. Apr. 15, 2005, http://news.spirithit.com/index/asia_pacific/print/malaysian_states_ 32. Id. art. 44. standardize_shariah_laws/. 33. Id. arts. 46, 55(3); Parliament of Malaysia, Gov’t of Malaysia, House of 69. Malay. Const. 9th sched., list II, art. 1. States have authority over the “...creation Representatives: General Information, http://www.parlimen.gov.my/eng-dR- and punishment of offences by persons professing the religion of Islam ... except in maklumatumum.htm (last visited May 9, 2005). regard to matters included in the Federal list.” However, there have been efforts by 34. See Commonwealth Parliamentary Association, Data on Women in state governments to expand jurisdiction to these matters, such as the enactment of the Commonwealth Parliaments and Legislatures 17 (2005), http://www.cpahq.org/ Syariah Criminal Offences Act in many States. Communication with Syrin Junisya & WomenintheCPA_pdf_media_public.aspx (data from 2004 shows 20 of 219 members Rashidah Abdullah, Asian-Pacific Resource & Research Centre for Women (ARROW), were female). Women of the World: Laws and Policies Affecting Their Reproductive Lives- Malaysia (draft) 25 35. Malay. Const. art. 45; Parliament of Malaysia, supra note 33. (Oct. 17, 2003) (on file with the Center for Reproductive Rights). 36. See Commonwealth Parliamentary Association, supra note 34. 70. Id. 9th sched., list II, item 1; Zaitoon Dato Othman, Islam in Malaysia Today and 37. Malay. Const. art. 45(3), (3A); Parliament of Malaysia, supra note 33. It’s Impact: The practice of Shariah Laws in Malaysia, http://www.muslim-lawyers. 38. Id. art. 73(a). net/news/datoothman.html. See also CEDAW, Combined initial and second periodic reports 39. Id. arts. 66(1), 68(1)–(8). of States parties: Malaysia, supra note 19. 40. Id. arts. 66(1), 68(1)–(8). 71. CEDAW, Combined initial and second periodic reports of States parties: Malaysia, supra 41. Id. art. 66(4A), (4B). note 19. MALAYSIA PAGE 113

72. Anwar, Zainah, Modern and Moderate Islam, AsiaWeek, Sept. 16, 1997, at 19. Advisory Service on International Humanitarian Law, General Comment: 73. Id. Malaysia, http://www.icrc.org/ihl-nat.nsf/162d151af444ded44125673e00508141/ 74. Id. 96f1b4396a4df1dbc1256aa700413a7b?OpenDocument (last visited May 13, 2005). 75. Poverty Reduction and Social Development Division, Asian Development 115. Honey Tan Lay Ean, supra note 99, at 91. “Treaties to which Malaysia is a party may Bank, Sociolegal Status of Women in Indonesia, Malaysia, Philippines, and either require subsequent legislation, in which case they become the law of the land Thailand 21 (2002), http://www.adb.org/Documents/Studies/Sociolegal_Status_ as soon as the necessary laws are enacted or, they may not, in which case they remain Women/. within a category of Malaysia’s international law, binding only herself vis-à-vis the other 76. 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Division for the Advancement of Women (DAW), Dep’t of Economic and Social 13, 2005). Affairs, Declaration, Reservations and Objections to CEDAW, Malaysia, http://www. 88. Id. un.org/womenwatch/daw/cedaw/reservations-country.htm (last visited May 9, 2005). 89. Section 2 of the Societies Act 1966 defines society as “any club, company, partnership Malaysia initially ratified CEDAW with reservation to articles 2(f), 5(a), 7(b), 9, 11, and or association of seven or more persons whatever its nature or object, whether temporary 16. In 1998, Malaysia withdrew its reservation with respect of article 2(f), 9(1), 16(1)(b), or permanent…” Asian Pacific Philanthropy Consortium, Philanthropy and the (d), (e), (h). Third Sector in Asia and the Pacific: Definitions and Forms: Malaysia, http:// 119. CEDAW, supra note 116. www.asianphilanthropy.org/countries/malaysia/definition.html (last modified Jan. 20, 120. Id. art. 7(b) 2005). 121. Id. art. 9(2) 90. Y.A.B. Dato’ Seri Abdullah bin Haji Ahmad Badawi, Malaysian Prime Minister and 122. Id. art. 16(1)(a), (c), (f). Minister of Finance, The 2005 Budget Speech to the Dewan Rakyat (Sept. 10, 2004) 123. Vienna Declaration and Programme of Action, World Conference on Human Rights, (transcript available at http://www.pmo.gov.my/website/webdb.nsf/vALLDOC/ Vienna, Austria, June 14–25, 1993, U.N. Doc. A/CONF.157/23 (1993); Programme of Action 332D53485BFFB11548256F0C0003EB02. of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 91. Economic Planning Unit, Government of Malaysia, Mid-term Review of the 1994, U.N. Doc. A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for Eighth Malaysia Plan 2001–2005, § 12.71, at 404 (2003), http://www.epu.jpm.my/ Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, U.N. Doc. New%20Folder/development%20plan/midterm-RM8.htm. A/CONF.177/20 (1995); Millennium Declaration, Millennium Assembly, New York, United 92. Tay & Partners, Laws of Malaysia, http://www.loc.gov/law/guide/malaysia.html; States, Sept. 6–8, 2000, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). See also CEDAW, Combined initial and second periodic reports of States parties: Malaysia, supra 124. Malay. Const. 9th sched., list III, art. 7. Sanitation in the federal capital (Kuala note 19, para. 380. Lumpur) is under the jurisdiction of the federal government exclusively. Id. 9th sched., 93. Malay. Const. art. 4(1). list I, art. 14. 94. Id. art. 5(1). 125. Id. 9th sched., list I, arts. 14(a), (c), 15(b). 95. Id. art. 6(1)–(2). 126. Fadil Azzim Abbas, U.N. Economic and Social Commission for Western 96. Id. art. 8(1). Asia, Social Policies in Malaysia 8 (2003), http://www.escwa.org.lb/information/ 97. Id. art. 11(1), (4). The practice of Islamic beliefs other than Sunni Islam has been publications/sdd/docs/ssd-03-1.pdf. Each five-year plan since the First Malaysia Plan restricted significantly by the government. U.S. Dep’t of State, supra note 7, § 2(c). (1966-1970) has included a chapter relating to health policy. Id. at 11. 98. Malay. Const. art. 13(1). 127. Eighth Malaysia Plan 2001–2005, supra note 111, at 477–498. 99. Honey Tan Lay Ean, Women’s Centre For Change, Measuring Up to CEDAW: 128. Id. para. 1.01, at 3. How Far Short are Malaysian Laws and Policies?, in Human Rights Commission 129. Ministry of Health Malaysia, Government of Malaysia, Health in Malaysia: of Malaysia (Suhakam), Report Roundtable Discussion: Rights and Obligations Achievements and Challenges 12 (Tan Sri Dato’ Dr. Abu Bakar Dato’ Suleiman & Under CEDAW 91–92 (2004), http://www.suhakam.org.my/docs/document_ Dato’ Dr. M. Jegathesan eds., 2000). resource/Report_RTD_CEDAW.pdf (last visited May 12, 2005). The inclusion of 130. The Third Outline Perspective Plan 2001–2010 (2001), supra note 110, paras. 1.22, gender was specific to art. 8(2), and did not amend art. 12 of the Constitution, which 3.21, 4.06, 4.14–4.15. provided for non-discrimination in access to education. Id. 131. Id. para. 7.51–7.52, at 182. 100. Malay. Const. art. 8(2). 132. Id. paras. 4.06, at 85, 7.54, at 182. 101. Id. art. 8(5)(a)–(f), pt. XII (General and Miscellaneous), art. 153. 133. Id. para. 6.19, at 156. 102. Id. art. 10. 134. Eighth Malaysia Plan 2001–2005, supra note 111, paras. 17.01, at 477, 17.27, at 490. 103. Id. 9th sched., list I, art. 4. See Penal Code, No. 574 (1997) (Malay.); Criminal 135. Id. para. 17.02, at 477. Primary health-care services are the first point of contact and Procedure Code (F.M.S. Cap. 6). include maternal child health-care, dental services, school health services and support 104. With exception to the Federal Territories. Id. art. 74(2), 9th sched., list II, art. 1. services such as clinical and imaging facilities, pharmacy and registration. Id. at 484 tbl. 105. Myint Zan, Additional Material: The Three Nixon Cases and Their Parallels in Malaysia, 17-2. 13 St. Thomas L. Rev. 743, 744 (2001). 136. Id. para. 17.02, at 477. 106. Administration of Islamic Law (Federal Territory) Act of 1993, No. 505, § 34 (1993) 137. Telemedicine is defined as the practice of medicine using audio, visual and data (Malay.). communications. Telemedicine Act 1997, No. 563, § 2 (1997) (Malay.). 107. Pusat Pungutan Zakat Wilayah Persekutuan [Zakat Collection Center], Majlis 138. Eighth Malaysia Plan 2001–2005, supra note 111, para. 17.28, at 477. Agama Islam Wilayah Persekutuan [Federal Territories Islamic Religious Council], Zakat 139. Id. paras. 17.29–17.36, at 491–493 (2001), http://www.epu.jpm.my/RM8/c17_cont. Organization in Malaysia, http://www.zakat.com.my/english/news/news-4-0903. pdf. shtml (last visited May 13, 2005). 140. Id. paras. 17.29–17.49, at 491–497 (2001), http://www.epu.jpm.my/RM8/c17_cont. 108. Id. pdf. 109. See Women’s Aid Organisation (WAO), Women’s Equality in Malaysia: Status 141. Ministry of Health Malaysia, Government of Malaysia, Vision for Health, § Report (March 2001), available at 2, http://www.pharmacy.gov.my/html/nedl.htm. http://www.wao.org.my/news/20010301statusreport.htm (last visited Jun. 19, 2003). 142. Id. 110. Economic Planning Unit, Government of Malaysia, The Third Outline 143. Siti Norazah Zulklifi et al., Gender, Sexuality and Reproductive Health Malaysia, in 1 Perspective Plan 2001–2010 (2001). Gender, Sexuality and Reproductive Health in South East Asia 88 (Pilar Ramos- 111. The Third Outline Perspective Plan 2001–2010 (2001), supra note 110, ch. 1, § I, Jimenez & Celeste Maria V. Condor eds., 2001). para. 1.01–1.03, at 3; Economic Planning Unit, Government of Malaysia, Eighth 144. Id. Malaysia Plan 2001–2005, ch. 1, § I, para. 1.01, at 3 (2001). 145. Id. 112. Eighth Malaysia Plan 2001–2005, supra note 111, ch. 1, § I, para. 1.01, at 3. 146. Id. 113. Malay. Const. 9th sched., list I, art. 1(a)–(b), (d). 147. Public Health Department, Ministry of Health Malaysia, http://dph.gov.my/ 114. Id. 9th sched., list I, art. 1(b); International Comm. of the Red Cross (last visited May 16, 2005); See also Regional Office for the Western Pacific, World PAGE 114 WOMEN OF THE WORLD:

Health Organization (WHO), Malaysia: Country Health Information Profile 181. National Population and Family Development Board (NPFDB), supra note 175 (2004), http://www.wpro.who.int//NR/rdonlyres/8AD8E3AE-B205-4587-BA50- 164, para. 4.8.2, at 55. 7AAED9C1FFC7/137/maa.pdf. 182. Communication with Syrin Junisya & Rashidah Abdullah, supra note 69, at 9. 148. Ministry of Health Malaysia, Government of Malaysia, Annual Report 183. Eighth Malaysia Plan 2001–2005, supra note 111, para. 17.17, at 486. 2000, at 49 (2001). 184. Private Healthcare Facilities and Services Act 1998, No. 586, § 74(1) (1998) (Malay.). 149. Id. at 49, 51. 185. Dato’ Chua Jui Meng, Health Minister Speaks on Healthcare and Managed 150. Regional Office for the Western Pacific, World Health Organization Care Organisations, (WHO), Malaysia, supra note 147. https://www.allianz.com.my/PressCentre/Newsletter/News_HealthCare_CJM1.htm 151. Ministry of Health Malaysia, Government of Malaysia, Annual Report (last visited June 13, 2005). 1999, at 236 (2000); National Pharmaceutical Control Bureau, Ministry of 186. S.M. Mohamed Idris, Make them report death, illness rates, New Straits Times, Sept. Health Malaysia, Annual Report 2002, at 1, 6 (2003), http://www.bpfk.gov. 22, 2004, at 13; Enforce act for treatment cost control, government told, Bernama- Malaysian my/pdfworddownload/bpfk2002.pdf. The NPCB operates under the Pharmaceutical National News Agency, June 7, 2004. Services Division (PSD) of the Ministry of Health Malaysia. PSD, Ministry of Health 187. Primary Care Doctors’ Organization Malaysia, The Private Healthcare Malaysia, Annual Report 2002, http://www.pharmacy.gov.my/html/annual_ Facilities and Services Act 1998, Healthcare Professional’s Guide § 6.1 (1998), report2002.htm. http://www.pcdom.org.my/common/phcfsa98.htm (summarizing the Private 152. Siti Norazah Zulklifi et al., supra note 143. Healthcare Facilities and Services Act 1998). 153. Id. 188. Information and Documentation System, supra note 168; WHO, National 154. Id. Expenditure on Health – Malaysia (2005), http://www.who.int/nha/country/MYS. 155. WHO, Malaysia: Country Cooperation Strategy, § 2.3 (2002) available at xls. http://www.who.int/countries/en/cooperation_strategy_mys_en.pdf (last visited 189. Mid-term Review of the Eighth Malaysia Plan 2001–2005, supra note 91, at 137 May 16, 2005). During the Seventh Malaysia Plan, primary health-care services were tbl.5-1, 430 tbl.12-5. See Eighth Malaysia Plan 2001–2005, supra note 111, para. 17.50, expanded, decentralizing hospital outpatient departments to health clinics. Eighth at 497. Malaysia Plan 2001–2005, supra note 111, para. 17.08, at 480. 190. Mid-term Review of the Eighth Malaysia Plan 2001–2005, supra note 91, at 156. Eighth Malaysia Plan 2001–2005, supra note 111, paras. 17.13–17.15, at 482–484; 430 tbl.21-5. (total amount set aside for this purpose is RM 7703.5 million). Fadil Azzim Abbas, supra note 126, at 19. 191. Economic Planning Unit, Government of Malaysia, Seventh Malaysia 157. Fadil Azzim Abbas, supra note 126. Plan 1996–2000, para. 17.61, at 551 (1996), http://www.epu.jpm.my/New%20Folder/ 158. Mid-term Review of the Eighth Malaysia Plan 2001–2005, supra note 91, at development%20plan/RM7.htm. 383 tbl.12-1. 192. Id. para. 17.25, at 540. 159. Mobile units refer to dispensary services, village health teams, flying doctor services 193. Id. paras. 7.34–7.35, at 216, 17.25, at 540, 17.56, at 546. and mobile dental services. Id. 194. Chan Chee Khoon, The Political Economy of Healthcare Reforms in Malaysia, in 160. Total extrapolated from 1,934 rural community clinics and 686 rural health clinics. Restructuring Health Services: Changing Contexts & Comparative Perspectives Id. 206 (Katuri Sen ed., 2003). 161. Id. at 484 tbl.17-2. Basic secondary care services are provided by resident medical 195. National Expenditure on Health – Malaysia (2005), supra note 188. officers and visiting specialists in areas of general medicine, surgery, obstetrics and 196. Id. gynecology and pediatrics. Full secondary care services comprise all components of 197. Communication with Syrin Junisya & Rashidah Abdullah, supra note 69. basic secondary care services, with additional services in orthopedics, anesthesiology, 198. WHO, Malaysia: Country Cooperation Strategy, supra note 155, § 3.1. psychiatry, dermatology, medical rehabilitation, pathology, imaging, dental, National self-reliance is part of Malaysia’s Vision 2020 policy. Developmental Aid from ophthalmology and geriatrics, provide by medical officers and resident specialists. Japan, Demark and Germany has ceased since 1998. Meanwhile, Malaysia continues Tertiary care services are highly specialized care in the areas of cardiology, cardiothoracic, to seek technical advice from international institutions (e.g. The World Bank, Asian pediatric and neurosurgery, geriatrics, neurology, respiratory medicine, urology and Development Bank, WHO) but remains self-sufficient as it is able to pay for advice or nephrology, plastic surgery and burns, maxillofacial, hematology, radiotherapy and develop its own expertise. Id. oncology, and endocrinology. Id. 199. Id.; Ministry of Health Malaysia, Government of Malaysia, Annual Report 162. The Third Outline Perspective Plan 2001–2010 (2001), supra note 110, para. 7.53, 1999, at 89 (2000). at 182. 200. Fees Act, No. 209 (1951) (Malay.). 163. Id. para. 7.54, at 184. WHO, Malaysia: Country Cooperation Strategy, supra 201. Fees (Medical) Order 1982, P.U. (A) 359/82, § 16 (1985) (Malay.). note 155, § 2.4. 202. Fees (Medical) (Amendment) Order (No. 2) 1994, P.U. (A) 468/94, § 2 (1994) 164. National Population and Family Development Board (NPFDB), Ministry of (Malay.). “Foreign person” means a person who is not a citizen of Malaysia but does not Women, Family and Community Development, Annual Report 2001, at 8 (2002). include a non-citizen who holds an identity card issued under paragraph 5(3)(b) or (c) NPFDB, Ministry of Women, Family and Community Development, History, at of the National Registration Regulations 1990 and, in the case of a child, one who holds http://www.lppkn.gov.my/History.htm (last visited May 18, 2005). a Malaysian birth certificate and whose father is the holder of any such identity card. Id. 165. Regional Office for the Western Pacific, World Health Organization § 2. (WHO), Malaysia, supra note 147, at 166. 203. Id. 166. Id. 204. Malaysian Medical Association (MMA), MMA Schedule of Fees (2002), 167. WHO, Malaysia: Country Cooperation Strategy, supra note 155, § 2.4, at 7. E.g., http://www.mma.org.my/current_topic/fee.htm (Sept. 2, 2002). the ratio of doctors to population is 1:1465 in Kuala Lumpur, while the ratio is 1:4120 in 205. Communication with Syrin Junisya & Rashidah Abdullah, supra note 69. Sabah. Id. 206. Employees Provident Fund Ordinance 1951, No. 21 (1951) (Malay.), amended by 168. Information and Documentation System Unit, Ministry of Health Malaysia, Employees Provident Fund Act 1991, No. 452, § 24(1) (1991), http://www.kwsp.gov. Health Facts 2003 (prelim), http://www.moh.gov.my/Facts/2003(prelim).htm. my/index.php?ch=100&pg=162 (last visited May 19, 2005). The Fund covers all 169. YB Dato’ Dr. Chua Soi Lek, Speech at the Dialogue with Malaysian Medical employee(s), interpreted by the Act as person(s) “employed under a contract of service or Students ¶ 4 (May 24, 2004) (transcript available at http://www.moh.gov.my/speech/ apprenticeship, whether written or oral and whether expressed or implied, to work for an menteri/240504.htm). employer.” Id. § 2. 170. Eighth Malaysia Plan 2001–2005, supra note 111, para. 17.22, at 487. 207. Id. § 43, 3rd sched. (1951) (Malay.). As of the end of December 1999, the total 171. Id.; Mid-term Review of the Eighth Malaysia Plan 2001–2005, supra note 91, § number of members was 9.54 million, comprising 4.78 million (50.1 per cent) active 12.17, at 387, § 12.22, at 389. members. Ong Fon Sim, Aging in Malaysia: A Review of National Policies and Programmes, 172. Id. para. 17.23, at 488. Other strategies include increasing the number of students Ageing and Long-Term Care: National Policies in the Asia-Pacific, ch. 4 (David sent abroad, and outsourcing training to the private sector. Mid-term Review of the R. Phillips & Alfred C.M. Chan eds., 2002), http://web.idrc.ca/es/ev-26511-201-1- Eighth Malaysia Plan 2001–2005, supra note 91, § 12.17, at 387. DO_TOPIC.html. 173. Mid-term Review of the Eighth Malaysia Plan 2001–2005, supra note 91, § 208. Employees Provident Fund Act 1991, No. 452, § 54(6)(f) (1991) (Malay.), amended by 12.17, at 387, § 12.22, at 389. Employees Provident Fund (Amendment) Act 2001, No. 1123 (2001) (Malay.). Portions 174. The Third Outline Perspective Plan 2001–2010 (2001), supra note 110, para. 6.19, of a member’s entitlements may be withdrawn for “medical financing.” The total sum at 156. of a member’s entitlements under the Fund may be withdrawn if the member has died, 175. Id. para. 7.51, at 182. reached 55 years old, become physically or mentally disabled, or plans to depart Malaysia 176. Eighth Malaysia Plan 2001–2005, supra note 111, para. 1.48, at 17; Mid-term permanently. Id. § 54(1)(a)–(e). See also Employees Provident Fund, Members: Review of the Eighth Malaysia Plan 2001–2005, supra note 91, § 12.22, at 389; Withdrawal Scheme, http://www.kwsp.gov.my/index.php?ch=139 (last visited May WHO, Malaysia: Country Cooperation Strategy, supra note 155, § 2.4. 19, 2005). 177. Information and Documentation System Unit, supra note 168. 209. Employees Provident Fund Ordinance 1951, No. 21 (1951) (Malay.), amended by 178. Eighth Malaysia Plan 2001–2005, supra note 111, para. 17.17, at 486. Employees Provident Fund Act 1991, No. 452, § 24(1) (1991), http://www.kwsp.gov. 179. Information and Documentation System Unit, supra note 168. my/index.php?ch=100&pg=162 (last visited May 19, 2005). These benefits are available 180. Estate Hospital Assistants (Registration) Act 1965, No. 435, § 1A (1965) (Malay.) to employees upon compulsory or optional retirement or retirement based on medical (amended 1990). reasons, as provided in the employment contract. Id. § 2. MALAYSIA PAGE 115

210. YB Dato’ Dr. Chua Soi Lek, Speech at the Launch of “Allianz Care” at the Mandarin 12.20, at 388. Oriental Hotel, Kuala Lumpur, ¶ 4 (Jan. 11, 2005) (transcript available at http://www. 250. See Communication with Syrin Junisya & Rashidah Abdullah, supra note 182, at 15. moh.gov.my/speech/menteri2/2005/110105%20Allianz%20Care.htm). In 2000, the 251. Civil Law Act 1956, No. 67, §§ 7–8, 28A (1956) (Malay.). The act was amended in SOCSO paid 209,820 workers, and the program expanded to include compensation for light of concerns that the availability of high damages awards would encourage personal workers injured en route to or from workplace. Eighth Malaysia Plan 2001–2005, injury lawsuits and turn Malaysia into a “litigious society,” and that society, rather than supra note 111, para. 17.12 at 481. insurance companies, would have to shoulder the economic burden of large awards. See 211. Ong Fon Sim, supra note 207. S. Santhana Dass, Is there a Need for Review After a Decade of the Civil Law 212. Id. (Amendment) Act 1984 on Damages?, 11th Malaysian Law Conference (Nov. 8–10, 213. Id. 2001), http://www.mlj.com.my/free/articles/santhana.htm. 214. Id. 252. Communication with Syrin Junisya & Rashidah Abdullah, supra note 215, at 15. 215. Communication with Syrin Junisya & Rashidah Abdullah, Asian-Pacific Resource 253. S. Radhakrishnan, Medical Negligence Litigation: Is Defensive Medicine & Research Centre for Women (ARROW), Women of the World: Laws and Policies Affecting Now The Norm? (1999), http://www.mlj.com.my/free/articles/Radakrishnan.htm. Their Reproductive Lives- Malaysia (draft) 12 (Dec. 2, 2004) (on file with the Center for (presented at the 12th Commonwealth Law Conference at Kuala Lumpur in September Reproductive Rights). 1999). 216. Id. 254. Id. 217. Seventh Malaysia Plan 1996–2000, supra note 191, para. 17.34, at 544. 255. Medical Act 1971, No. 50, § 3 (1971) (Malay.). The Code of Professional Conduct, 218. Chan Chee Khoon, supra note 194. supra note 233; Malaysian Medical Council, Code of Medical Ethics (2002), 219. Communication with Syrin Junisya & Rashidah Abdullah, supra note 215, at 13. http://www.mma.org.my/charters/Ethical_code2.pdf. 220. YB Dato’ Dr. Chua Soi Lek, Speech at the Launch of “Allianz Care” at the Mandarin 256. The Code of Professional Conduct, supra note 233, pt. III, § 3. Oriental Hotel, supra note 210, ¶¶ 9, 11–12. 257. Malaysian Medical Association, Memorandum of Understanding, The 221. The Third Outline Perspective Plan 2001–2010 (2001), supra note 110, para. 7.54, Patient’s Charter (2002), http://www.mma.org.my/charters/patient.htm. at 183 . 258. Malaysian Medical Association, Patient’s Rights (2002), http://www.mma. 222. Eighth Malaysia Plan 2001–2005, supra note 111, para. 1.48, at 17. org.my/charters/patient_right.htm. 223. Mid-term Review of the Eighth Malaysia Plan 2001–2005, supra note 91, § 259. 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Medical Act 1971, No. 50, § 3 (1971) (Malay.); Malaysian Medical Council 264. Id. paras. 20.18, at 563, 20.28, at 566, 20.35, at 568 . (MMC), Overview of the Function and Organization of the MMC, http://www. 265. Id. para. 20.35, at 568. moh.gov.my/mmc/overview.htm (last visited June 1, 2005). 266. Id. para. 20.36, at 569. 229. Malaysian Medical Association, Medicine as a Career (2002), http://www. 267. YB Dato’ Chua Jui Meng, Speech at the Launch of the Malaysian Twins Support mma.org.my/info/career.htm. Group at the Damansara Fertility Centre ¶ 6 (June 3, 2003) (transcript available at http:// 230. Id. www.moh.gov.my/speech/menteri/030603.htm); NPFDB, Assisted Conception 231. Id. Technology, http://www.lppkn.gov.my/assisted.htm (last visited May 18, 2005). 232. Malaysian Medical Council, Code of Medical Ethics, pt. III, § 1.1(c) (2002), 268. YB Dato’ Chua Jui Meng, Speech at the Launch of the Malaysian Twins Support http://www.mma.org.my/charters/Ethical_code2.pdf. Group at the Damansara Fertility Centre, supra note 267, ¶ 7. Simpler procedures include 233. Malaysian Medical Council, The Code of Professional Conduct, http:// assessing hormonal status, laparoscopic evaluation, seminal fluid evaluation, and intra- www.moh.gov.my/mmc/codeprolist.htm (Dec. 9, 1986); Overview of the Function uterine insemination. Id. and Organization of the Malaysian Medical Council, supra note 228. 269. Id. ¶ 8. 234. This is defined as “no more then serious misconduct judged according to the rules, 270. See Id. ¶ 23. written or unwritten, governing the profession” and acts “which will be reasonably 271. See Deborah Loh, 46pc rise in AIDS from unprotected sex, New Straits Times, Apr. 16, regarded as disgraceful or dishonorable by his professional brethren….” The Code of 2003 (quoting Datuk Seri Shahrizat, Minister for Women and Family Development). Professional Conduct, supra note 233, pt. I. Specific acts include “neglect or disregard 272. See Malaysia National Population and Family Development Programme, of professional responsibilities…[, a]buse of professional privileges and skills…[, c]onduct Facts and Figures § 4.6 (1982). derogatory to the reputation of the medical profession…[, a]dvertising, canvassing and 273. Letter from Ms. Khoo Swee Kheng, Deputy Director, National Population and related professional offenses.” Id. pt. II. Family Development Board, to Syirin Junisya, Programme Officer, ARROW (July 28, 235. Laws of Malaysia: Medical Regulations 1974, reg. 27; Medical Act 1971, No. 50, § 2003) (on file with the Center for Reproductive Rights) (referring to Malaysia National 29(2) (1971) (Malay.). Population and Family Development Programme, Facts and Figures, 1982). 236. Nurses Act 1950, No. 14 (1950) (Malay.) (amended 1999) (establishing the Nursing 274. NPFDB, Ministry of Women, Family and Community Development, Number Board). of Clinics Providing Family Planning Services by Implementing Agencies and 237. Midwives Act 1966, No. 436 (1966) (Malay.) (establishing the Midwives Board). State, Malaysia: 2000, http://www.lppkn.gov.my/popmal/content63.html; See 238. Registration of Pharmacists Act 1951, No. 371, § 3 (2001) (Malay.) (establishing Federation of Family Planning Association, Annual Report 2002, at 12 (2002). the Pharmacy Board); Pharmaceutical Services Division, Ministry of Health 275. National Population and Family Development Board, Population Profile Malaysia, Pharmacy Board, http://www.pharmacy.gov.my/html/pharmacy_board_ Malaysia 84 fig.5.4. f.htm (last visited May 19, 2005). 276. Id. 239. Nurses Act 1950, supra note 236. 277. Id. at 89 fig.5.7. Reasons cited for discontinuation were planning for pregnancy 240. Id. § 3. (37.9%), side effects (26%), medical advice (7.6%), method failure (4.7%), husband’s 241. Midwives Act 1966, supra note 237. objections (2.4%) and others (21.4%). Id. 242. Registration of Pharmacists Act 1951, No. 371, §§ 3, 5–6 (1951) (Malay.). 278. 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is not permanent in nature is permissible when several conditions are met; 3) to space ARROW, supra note 312; CEDAW, Combined initial and second periodic reports of States parties: the children for reasons of health, education and family happiness, using other methods Malaysia, supra note 19, para. 271. than (1) and (2) is harus (permissible).” Nik Noraini & Nik Badli Shah, Islam, Reproductive 315. National Conference on Safe Motherhood, supra note 314, § 4.6, at 8; CEDAW, Health and Women’s Rights in Malaysia, in Islam, Reproductive Health and Women’s Combined initial and second periodic reports of States parties: Malaysia, supra note 19, para. Rights 179 (Zainah Anwar & Rashidah Abdullah eds., 2000). 271(h). 283. Administration of Islamic Law (Federal Territories) Act 1993, No. 505, § 34(1)–(4) 316. National Conference on Safe Motherhood, supra note 314, § 4.7, at 8; CEDAW, (1993). Fatwas are taken to be law after publication in the Gazette. Id. 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Sheridan Mahavera, Foreign Wives Hail Relaxing of Ruling, due inquiry and investigation that the marriage has irretrievably broken down, the Court New Straits Times, May 5, 2003. shall advise the husband to pronounce one talaq before the Court.” See also Islamic 464. Law Reform (Marriage and Divorce) Act 1976, No. 164, §§ 5–8 (1976) (Malay.). Family Law (State of Selangor) Enactment 2003, Selangor Enactment No. 2, § 57(1)–(3) 465. Id. § 4(a) (1976) (Malay.). In other words, if a woman has been lawfully married (2003) (Malay.). under Chinese customary marriage prior to this date, such a marriage is deemed 511. Islamic Family Law (Federal Territory) Act 1984, No. 303, § 47(5) (1984) (Malay.). registered under the Act. 512. Id. § 124. 466. The age of majority under the Age of Majority Act 1971 is 18. Age of Majority Act 513. Id. § 55A. Talaq pronounced outside the Court is valid if the husband reported to the 1971, No. 21, § 2 (1971) (Malay.). Court within 7 days, or ascertained as valid according to Islamic law by the Court. Id. § 467. Law Reform (Marriage and Divorce) Act 1976, No. 164, pt. III, § 10 (1976) (Malay.). 55A(1)–(3). 468. Id. pt. III, § 12(a). 514. Id. § 124. 469. Id. pt. II, §§ 5–8. 515. Sisters in Islam, Violation of Muslim Women’s Human Rights: Further 470. Married Women and Children (Maintenance) Act 1950, No. 263, § 3(1) (1950) Discrimination Against Muslim Women Under the Selangor Islamic Family Law (Malay.). Bill 2003 Through Selective Gender Neutral Provisions (2003), 471. Law Reform (Marriage and Divorce) Act 1976, No. 164, § 78 (1976) (Malay.). http://www.muslimtents.com/sistersinislam/memorandums/29052003.htm. 472. Married Women and Children (Maintenance) Act 1950, No. 263, § 3(2) (1950) 516. Islamic Family Law (Federal Territory) Act 1984, No. 303, § 49(1)–(4) (1984) (Malay.). (Malay.), amended by Law Reform (Marriage and Divorce) Act 1976, No. 164 (1982) The amount of tebus talaq is either agreed upon by both parties or where the parties (Malay.). cannot agree, determined by the Court. Id. § 49(1), (3). Similar provisions are provided 473. Islamic Family Law (Federal Territory) Act 1984, No. 303 (1984) (Malay.). for under the Kelantan Islamic Family Law Enactment No. 1 of 1983 in section 36(1)–(3) 474. Id. § 8 (1984) (Malay.). and the Islamic Family Law (State of Selangor) Enactment 2003 in section 49(1)–(4). 475. Nik Noraini & Nik Badli Shah, supra note 282, at 188. The doctrine of ijbat, or 517. Islamic Family Law (Federal Territory) Act 1984, No. 303, § 50(1) (1984) (Malay.). compulsion, is followed in Kelantan, Kedah and Melaka. See e.g., Islamic Family Law There are similar provisions in state Islamic Family Laws. E.g., Islamic Family Law (State Enactment 1983, Kelantan Enactment No. 1, § 13(2) (1983) (Malay.). of Selangor) Enactment 2003, Selangor Enactment No. 2, § 50(1) (2003) (Malay.); Islamic 476. [Polygamy] Women Campaign Against Polygamy, Religion News Blog, Mar. 17, 2003, Family Law Enactment 1983, Kelantan Enactment No. 1, § 37 (1983) (Malay.). http://www.religionnewsblog.com/archives/00002762.html. 518. Islamic Family Law (Federal Territory) Act 1984, No. 303, § 50(2) (1984) (Malay.). 477. Id. 519. Ahmad Ibrahim, Family Law in Malaysia and Singapore 219 (1978). 478. Nik Noraini & Nik Badli Shah, supra note 282, at 185; See Islamic Family Law 520. Islamic Family Law (Federal Territory) Act 1984, No. 303, § 52(1) (1984) (Malay.). (Federal Territory) Act 1984, No. 303, § 23(1) (1984) (Malay.); Islamic Family Law (State 521. Id. § 52(1)(d)–(i). of Selangor) Enactment 2003, Selangor Enactment No. 2, § 23(1) (2003) (Malay.). 522. See Islamic Family Law (State of Selangor) Enactment 2003, Selangor Enactment 479. Islamic Family Law (Federal Territory) Act 1984, No. 303, § 23(4)(a)–(d) (1984) No. 2, § 53(1) (2003) (Malay.); Islamic Family Law Enactment 1983, Kelantan Enactment (Malay.); Islamic Family Law (State of Selangor) Enactment 2003, Selangor Enactment No. 1, § 38 (1983) (Malay.). No. 2, § 23(5)(a)–(d) (2003) (Malay.). 523. Islamic Family Law (State of Selangor) Enactment 2003, Selangor Enactment No. 2, 480. Women’s Aid Organization, Know Your Rights: Polygamy, http://www.wao. § 53(1)–(5) (2003) (Malay.); Sisters in Islam, Violation of Muslim Women’s Human org.my/news/20030103knowrghts_polygamy.htm (last visited June 6, 2005). Rights: Further Discrimination Against Muslim Women Under the Selangor 481. Id. Islamic Family Law Bill 2003 Through Selective Gender Neutral Provisions 482. Sean Yoong, Malaysian state promotes itself as polygamist paradise, Human Rights (2003), http://www.muslimtents.com/sistersinislam/memorandums/29052003.htm Without Frontiers International, Jan. 3, 2003, http://www.hrwf.net/html/ (May 29, 2003). malaysia_2003.html#Malaysiaatepromoteitselfaspol. 524. Jonathan Kent, Malaysia Reviews Texting Divorce, BBC News, July 31, 2003, http:// 483. Id. news.bbc.co.uk/2/hi/asia-pacific/3112151.stm. MALAYSIA PAGE 119

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Employment Act 1955; CEDAW, Combined initial and second periodic reports of States father, and in that case she may exercise her powers as a testamentary guardian or, in the parties: Malaysia, supra note 19, para. 212. absence of a legal guardian, she may be appointed legal guardian by the Court, but in the 597. YB Dato’ Chua Jui Meng, Speech at the Official Opening of National Seminar on absence of such appointment she shall not deal with the minor’s property.” Gender Equality at Work (Aug. 26, 2002) (transcript available at http://www.mohr.gov. 557. Sisters in Islam, Guardianship Law and Muslim Women 22 (2002). my/mygoveg/makluman/spm260.htm). 558. Id. 598. Communication with Syrin Junisya & Rashidah Abdullah, supra note 434 at 33. 559. Women’s Aid Organisation, Know Your Rights: Guardianship Act, 599. Id. http://www.wao.org.my/news/20020701knowrghts_guardianship.htm (last visited June 600. Immigration Act 1959/63, No. 155, § 8(3)(a)–(o) (1963) (Malay.). The Act bars 9, 2005). the right of entry of “prohibited immigrants”; among this category are people with “a 560. Guardianship of Infants Act 1961, No. 351, § 5(1)–(2) (1961) (Malay.), amended by contagious or infectious diseases which makes his presence in Malaysia dangerous to the Guardianship of Infants (Amendment) Act 1999, No. A1066 (1999) (Malay.). community.” Id. § 8(3)(b). 561. Women’s Aid Organisation, Know Your Rights: Guardianship Act, 601. Communication with Syrin Junisya & Rashidah Abdullah, supra note 434 at 33. http://www.wao.org.my/news/20020701knowrghts_guardianship.htm (last visited June 602. Communication with Syrin Junisya & Rashidah Abdullah, supra note 434, at 24. 9, 2005). 603. Economic and Social Commission for Asia and the Pacific, Report of the 562. Malay. Const. art. 8(2). Expert Group Meeting on Alleviating the Feminization of Poverty, Bangkok, 563. 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Ministry of Women and Family Development, Final Draft, Report of the 663. Id. Convention on the Elimination of All Forms of Discrimination Against Women 664. Id. (CEDAW) § 14.6(i) (2003). 665. Laws Should Protect As Well As Punish, The Star, Jan. 12, 2003, http://www.corpun. 613. Final Draft, Report of the Convention on the Elimination of All Forms of com/myj00301.htm; Tough laws for incest, Smart News Network International, Jan. 9, Discrimination Against Women (CEDAW), supra note 612, at 217 § 10.4 2003, http://www.snni.org/cgi-bin/snni2/list_item.cgi?archives/2003_01_10/malaysia/ 614. Final Draft, Report of the Convention on the Elimination of All Forms of st1001_1.txt. These amendments will be found in Section 376C of the Penal Code. Discrimination Against Women (CEDAW), supra note 612, at 218 tbl.10.5. 666. Syariah Criminal Offences (Federal Territory) Act 1997, No. 559, § 20 (1997) (Malay.). 615. Department of Statistics, Government of Malaysia, Social Statistics 667. Domestic Violence Act 1994, No. 521 (1994) (Malay.). Bulletin Malaysia 2001, at 126, 134 (2002). 668. The court may issue a protection order prohibiting the accused from using domestic 616. Id. at 126. violence against the victim. Domestic Violence Act 1994, No. 521, §§ 4(1), 5(1)(a)–(c), 617. Id. at 130, 134. 12–13 (1994) (Malay.). 618. Id. at 155 (2002). 669. An analysis of media coverage of foreign domestic worker abuse has revealed that 619. Eighth Malaysia Plan 2001–2005, supra note 111, § 4.127, at 127. abuse of foreign domestic workers is a recurring phenomenon in Malaysian society. 620. Aminah Ahmad, supra note 438, at 42. Women’s Aid Organisation, WAO Research and Advocacy, Foreign Domestic 621. Rosnah Mohd. Yusuff & Mohd. Amin Mohd. Soom, Women in Engineering Worker Abuse: The Growing Problem of Foreign Domestic Worker Abuse in Education and Training: A Cause for Concern?, http://www.eng.upm.edu. Malaysia, http://www.wao.org.my/research/fdw.htm (last visited June 10, 2005). my/~feiic/buletin/womenee.html (last visited June 10, 2005). 670. Domestic Violence Act 1994, No. 521 § 3 (1994) (Malay.); Laura Hebert, 622. Ganambal Mosses & Irene Xavier, Women Workers in Malaysia: A Country Monitoring the Domestic Violence Act 1994 Malaysia § 2 (1997). Report (1997), 671. De facto spouse is interpreted as “a person who has gone through a form of ceremony http://www.members.tripod.com/~cawhk/9810/9810art02.htm (Nov. 1997). which is recognized as a marriage ceremony according to the religion or custom of the 623. Final Draft, Report of the Convention on the Elimination of All Forms parties concerned, notwithstanding that such ceremony is not registered…” Domestic of Discrimination Against Women (CEDAW), supra note 612, at 222 tbl.10.21; Violence Act 1994, No. 521 § 2 (1994) (Malay.). Communication with Syrin Junisya & Rashidah Abdullah, supra note 434 at 38. 672. An incapacitated adult means a “person who is wholly or partially incapacitated or 624. Malay. Const. art. 12(1). infirm, by reason of physical or mental disability or ill-health or old age…” Id. 625. Communication with Syrin Junisya & Rashidah Abdullah, supra note 434, at 5. 673. Id. 626. Education Act 1996, No. 550, § 29A(1) (1996) (Malay.), amended by Education 674. For a comprehensive exposition on the limitations of the Domestic Violence Act, see Amendment Act 2002, No. A1152, § 7 (2002) (Malay.); Southeast Asian Ministers of Memorandum prepared by the Women’s Centre For Change, Penang at http://www. Education Organization (SEAMEO), Malaysia- Education Data, http://www. wccpenang.org/s_legal_00.htm (last visited June 10, 2005). seameo-innotech.org/resources/seameo_country/educ_data/malaysia.asp (last visited 675. Criminal Procedure Code (F.M.S. Cap. 6), § 2 (Year) (Malay.). June 10, 2005). 676. Id. 1st Sched. 627. Education Act 1996, No. 550, § 29A(4) (1996) (Malay.). 677. Domestic Violence Act 1994, No. 521 § 4 (1994) (Malay.). 628. Eighth Malaysia Plan 2001–2005, supra note 111, at 87–129. 678. Id. §§ 4(1), 5(1), 12–13. 629. Id. § 4.65, at 111–112. 679. Id. §§ 12–13. 630. Id. § 4.66, at 112. 680. The court may include a provision in a protection order prohibiting the person 631. Id. § 4.68, at 112–113. against whom the order is made from inciting “any other person to commit violence 632. Id. § 4.69, at 113. against the protected person or persons.” Id. § 5(2). 633. Id. § 4.101, at 122 . 681. Id. § 6(1)(a)–(f). 634. Id. § 20.30, at 567. 682. Id. § 7(1). 635. Id. § 20.30, at 567. 683. Id. § 11. 636. Sharifah Maimunah bt Syed Zin, Seminar Paper: Sexual and Reproductive 684. Id. § 10(1). Health of Young People: Moving From Policies to Programmes, Family Health 685. Id. § 10(2)(a)–(e). Education in Malaysian Schools 3 (2002) (presented at the National Youth Seminar 686. Email from Zarizana Abdul Aziz, Chairperson, Legal Reform Sub-Committee on Youth-Friendly Sexual and Reproductive Health Programme – The National Youth of Women’s Crisis Centre Penang, to Asian-Pacific Resource & Research Centre Agenda with International Perspectives). for Women (general address) (Mar. 8, 1999, 5:44 PM) (on file with the Center for 637. Communication with Syrin Junisya & Rashidah Abdullah, supra note 434, at 6. Reproductive Rights). 638. See Mary Huang Soo Lee, Communication and Advocacy Strategies: 687. Online Women In Politics, Women’s Human Rights Situation in Malaysia 2, Adolescent Reproductive and Sexual Health, Case Study: Malaysia 6 (1999). http://www.onlinewomeninpolitics.org/womensit/mly.pdf (last visited June 10, 2005). 639. Id. 688. Penal Code, No. 574, § 509 (1997) (Malay.). 640. Communication with Syrin Junisya & Rashidah Abdullah, supra note 434, at 6. 689. Id. § 354. 641. Id. 690. See Forensic Medicine for Medical Students, Burden of Proof, http://www. 642. Id. forensicmed.co.uk/burden_of_proof.htm (last visited June 14, 2005). The meaning of 643. Evidence Act 1950, No. 56, § 113 (1950) (Malay.). beyond reasonable doubt was discussed in Miller v. Minister of Pensions (1947) 2 All ER 644. Penal Code, No. 574, § 375(a)–(f) (1997) (Malay.). 372. Id. 645. Id. § 374. This offence carries a maximum sentence of ten years’ imprisonment, fines, 691. High Court Decision 3 CLJ 583 [1998] Malaysian High Court; Communication or whipping or any combination of two such punishments. Id. with Syrin Junisya & Rashidah Abdullah, supra note 434, at 35. 646. Id. The narrow definition of rape under the Penal Code does not encompass other 692. Industrial Court Award No. 606 of 1996 and High Court Decision 3 CLJ 583. forms of acts of violation such as forced cunnilingus, fellatio and anal penetration. In In that case, the Complainant made 2 allegations of sexual harassment of her by the such cases, the unnatural offences under Sections 377, 377A, 377B, 377C, and 377D of Managing Director. The Judge found, inter alia, that not informing her husband of one the Penal Code will be applicable. of the allegations of sexual harassment was an unusual act. Further, the fact that the 647. Id. § 375, Exception. Complainant took some time before telling someone about the allegations of sexual 648. Id. § 375, Exceptions 1–2. harassment also worked against her; Communication with Syrin Junisya & Rashidah 649. Id. § 376. Abdullah, supra note 434, at 35. 650. Women’s Crisis Centre, Penang, Shame, Secrecy and Silence: Study of Rape in 693. The case is currently pending in the Court of Appeal on an appeal by the claimant. Penang 104 (Rohana Ariffin ed., 1997). Communication with Syrin Junisya & Rashidah Abdullah, supra note 434, at 35 n.147. 651. Evidence Act 1950, No. 56, § 133A (1950) (Malay.). 694. Ministry of Human Resources, Code of Practice on the Prevention and 652. Women’s Crisis Centre, Penang, supra note 650, at 177. Eradication of Sexual Harassment in the Workplace (1999). 653. All Women’s Action Society (AWAM), Working Together Towards Better 695. Id. art. 4. Services For Rape Survivors, Draft Report 12 (1999). 696. Id. art. 18. 654. Evidence Act 1950, No. 56, § 146A (1950) (Malay.). 697. Id. art. 19. 655. Press Statement, Women’s Centre for Change (WCC), Penang, Hudud in 698. Zarizana Abdul Aziz & Cecelia Ng, Combating Sexual Harassment: The Way Forward Terengganu (May 9, 2002), http://www.wccpenang.org/newsrelease2.htm. (2001) (presented at 11th Malaysian Law Conference, Nov. 8–10, 2001, Kuala Lumpur), 656. Women’s Aid Organisation, WAO Statement, Terengganu Hudud Laws (2002), http://www.wccpenang.org/r_sex_h_05a.htm. MALAYSIA PAGE 121

699. Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, supra note 694, arts. 15, 18. 700. The Joint Action Group Against Violence Against Women (JAG-VAW) is a fluid group of women’s organisations working in coalition nationally on certain issues. On the issue of sexual harassment, the JAG-VAW group consists of Women’s Centre for Change (WCC) (the Chair), Women’s Development Collective (WDC), All Women’s Action Society (AWAM), Women’s Aid Organisation (WAO), Sisters in Islam (SIS), Malaysian Trades Union Congress (Women’s Wing) (MTUC), Persatuan Sahabat Wanita (PSWS) and Women’s Candidacy Initiative (WCI). See Joint Action Group Against Violence Against Women (J.A.G.), A Memorandum on Proposed Sexual Harassment Bill (2001), http://www.wccpenang.org/ir_sex_har_memo_02.htm (March 30, 2001) (presented to Yang Berhormat Dr. Haji Abdul Latiff Ahmad, Deputy Minister of Human Resources). 701. Joint Action Group Against Violence Against Women (J.A.G), supra note 700. 702. Penal Code, No. 574, § 372B (1997) (Malay.). 703. Syariah Criminal Offences (Federal Territory) Act 1997, No. 559, § 21(1) (1997) (Malay.). 704. Id. 705. Id. § 21(1)–(2). 706. Malay. Const. art. 6(1). 707. Id. art. 6(2). Except compulsory service for national purposes prescribed by federal law which is never invoked. 708. Penal Code, No. 574, §§ 370–371 (1997) (Malay.). 709. Id. § 372. 710. Id. § 372A. 711. Id. § 373. 712. Id. § 374. 713. Immigration Act 1959/63, No. 155. (1963) (Malay.). 714. Restricted Residence Act 1933, No. 377, § 2 (1933) (Malay.). If the Minister, on the basis of written information and an inquiry, is satisfied that reasonable grounds exist for it, the Minister can issue an order directing a person to reside within a specified area for a fixed term. Under § 2A, the person may also be subjected to police supervision for up to five years. 715. U.S. Department of State, Country Reports on Human Rights Practices 2002: Malaysia (2003), http://www.state.gov/g/drl/rls/hrrpt/2002/18252.htm (Mar. 31, 2003). 716. Human Rights Watch, Human Rights News, Malaysia: Mass Expulsion Puts Migrants at Risk (2004), http://hrw.org/english/docs/2004/11/19/malays9704.htm (Nov. 23, 2004). 717. Immigration (Amendment) Act 2002, No. 1154 (2002) (Malay.). 718. Id. at 6(3). 719. Human Rights News, Malaysia: Mass Expulsion Puts Migrants at Risk, supra note 716. 720. Asian-African Legal Consultative Organization (AALCO), Summary Records of the Fifth General Meeting, Held on Thursday, 18 July 2002, at 3:00 p.m., http://www.aalco.org/summary_records_of_the_fifth_general%20meeting.htm. 721. Id. 722. Roziah Omar, The Malay Woman in the Body: Between Biology and Culture 23 (1994). 723. Id. 724. For a critique of the Child Act 2001, see “A Memorandum on Child Bill 2000.” Women’s Crisis Centre, A Memorandum on Child Bill 2000 (2000), http://www. wccpenang.org/ir_child_bill_memo.htm (Oct. 6, 2000). A few of the recommendations have been incorporated, but not all. 725. Child Act 2001, No. 611, § 43(1)(a)–(j), (2) (2001) (Malay.). 726. Id. § 43(1)(aa) (for offences under subsections (a) to (h) and (k)). 727. Id. § 43(1)(bb) (for offences under subsections (i) and (j)). 728. Id. § 43(2)(b) (for offences under subsections (1)(i) and (j)). 729. Id. § 48(1)–(3). 730. Id. § 48(1)–(2). 731. Id. § 48(4)(a)–(b). 732. Laws of Malaysia: Child Act 2001 (Act 611), § 2(1); Communication with Syrin Junisya & Rashidah Abdullah, supra note 434, at 7. 733. Child Act 2001, No. 611, § 38(a)–(c) (2001) (Malay.). 734. Id. § 38(c). Other circumstances exist if the child is “being induced to perform any sexual act, or is in any physical or social environment which may lead to the performance of such act” and if the child “lives in or frequents any brothel or place of assignation.” Id. § 38(a)–(b). 735. Id. § 39 (1). 736. Id. § 39(4). “If the Court For Children is not satisfied that a child brought before it is in need of protection and rehabilitation, the Court For Children shall order the child to be returned to the care and custody of his parent or guardian.” Id. § 39(5). 737. Id. § 21(2). 738. Id. § 21(1)–(2). PAGE 122 WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 123 3. Philippines

Statistics

GENERAL Population

■ Total population (millions): 83.1.1

■ Population by sex (thousands): 40,418.2 (female) and 40,990.0 (male).2

■ Percentage of population aged 0–14: 36.5.3

■ Percentage of population aged 15–24: 20.3.4

■ Percentage of population in rural areas: 39.5 Economy

■ Annual percentage growth of gross domestic product (GDP): 3.5.6

■ Gross national income per capita: USD 1,080.7

■ Government expenditure on health: 1.5% of GDP.8

■ Government expenditure on education: 2.9% of GDP.9

■ Percentage of population below the poverty line: 37.10

WOMEN’S STATUS

■ Life expectancy: 73.1 (female) and 68.8 (male).11

■ Average age at marriage: 23.8 (female) and 26.3 (male).12

■ Labor force participation: 54.8 (female) and 84.3 (male).13

■ Percentage of employed women in agricultural labor force: Information unavailable.

■ Percentage of women among administrative and managerial workers: 58.14

■ Literacy rate among population aged 15 and older: 96% (female) and 96% (male).15

■ Percentage of female-headed households: 11.16

■ Percentage of seats held by women in national government: 18.17

■ Percentage of parliamentary seats occupied by women: 15.18

CONTRACEPTION

■ Total fertility rate: 3.03.19

■ Contraceptive prevalence rate among married women aged 15–49: 49% (any method) and 33% (modern method).20

■ Prevalence of sterilization among couples: 10.4% (total); 10.3% (female); 0.1% (male).21

■ Sterilization as a percentage of overall contraceptive prevalence: 22.4.22

MATERNAL HEALTH

■ Lifetime risk of maternal death: 1 in 90 women.23

■ Maternal mortality ratio per 100,000 live births: 200.24

■ Percentage of pregnant women with anemia: 50.25

■ Percentage of births monitored by trained attendants: 60.26 PAGE 124 WOMEN OF THE WORLD:

ABORTION

■ Total number of abortions per year: Information unavailable.

■ Annual number of hospitalizations for abortion-related complications: Information unavailable.

■ Rate of abortion per 1,000 women aged 15–44: Information unavailable.

■ Breakdown by age of women obtaining abortions: 2.0% (under 20); 24.2% (age 20–24); 27.3% (age 25–29); 30.3% (age 30–34); 16.2% (age 35 and older).27

■ Percentage of abortions that are obtained by married women: 91.0.28

SEXUALLY TRANSMISSIBLE INFECTIONS (STIS) AND HIV/AIDS

■ Number of people living with sexually transmissible infections: Information unavailable.

■ Number of people living with HIV/AIDS: 9,000.29

■ Percentage of people aged 15–49 living with HIV/AIDS: <0.1 (female) and <0.1(male).30

■ Estimated number of deaths due to AIDS: <500.31

CHILDREN AND ADOLESCENTS

■ Infant mortality rate per 1,000 live births: 26.32

■ Under ﬁve mortality rate per 1,000 live births: 30 (female) and 40 (male).33

■ Gross primary school enrollment ratio: 112% (female) and 113% (male).34

■ Primary school completion rate: 80 (female) and 72 (male).35

■ Number of births per 1,000 women aged 15–19: 38.36

■ Contraceptive prevalence rates among married female adolescents: 11.4% (modern methods); 10.4% (traditional methods); 21.8% (any method).37

■ Percentage of abortions that are obtained by women younger than age 20: 2.0.38

■ Number of children under the age of 15 living with HIV/AIDS: Information unavailable. PHILIPPINES PAGE 125

ENDNOTES

1. See United Nations Population Fund (UNFPA), The State of World Population 2005, at 112 (estimate for 2005). 2. See United Nations Population Fund (UNFPA), Country Profiles for Population and Reproductive Health: Policy Developments and Indicators 2003 (2003), http://www.unfpa.org/profile/default.cfm. [hereinafter UNFPA, Country Profiles]. 3. See The World Bank, World Development Indicators 2004, at 39 (2004), http:// www.worldbank.org/data/ (estimate for 2002). [hereinafter The World Bank]. 4. See UNFPA, Country Profiles, supra note 2. 5. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimate for 2003). 6. See The World Bank, supra note 3, at 183. (estimate for 1990-2002). 7. See The World Bank, World Development Indicators 2004: Data Query (2004), http://devdata.worldbank.org/data-query/ (statistical figure obtained through the Atlas method) (estimate for 2003). 8. See UNFPA, The State of World Population 2005, supra note 1, at 112. 9. See United Nations CyberSchoolBus, InfoNation: Government Education Expenditure (2004), http://www.un.org/Pubs/CyberSchoolBus/infonation/e_ infonation.htm (estimate for 1997). 10. See The World Bank, Country At A Glance Tables For Philippines 2004, at 1 (2004), http://www.worldbank.org/data/countrydata/countrydata.html. 11. See UNFPA, The State of World Population 2005, supra note 1, at 108. 12. See UNFPA, Country Profiles, supra note 2. 13. See Id. 14. See Social and Demographic Statistics Branch, United Nations Statistics Division, The World’s Women 2000: Trends and Statistics (2000) (estimate for 2001). 15. See UNFPA, Country Profiles, supra note 2. 16. See Social and Demographic Statistics Branch, supra note 14, at 48.(estimate for 1991-1997). 17. See Save the Children, State of World’s Mothers 2004, at 37 (2004), http:// www.savethechildren.org/mothers/report_2004/images/pdf/SOWM_2004_final.pdf (estimate for 2004). 18. See United Nations Statistics Division, Millennium Indicators Database (2005), http://unstats.un.org/unsd/mi/mi_series_results.asp?rowId=557 (last updated Mar. 16, 2005) (estimate for 2005). 19. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimate for 2000-2005). 20. See Id. at 108. 21. See Engenderhealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002) (estimates for 1998). 22. See Id. at tbl. Supp. 2.5, at 56 (estimate for 1998). 23. See World Health Organization et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA) 45 (2000) (estimate for 1995). 24. See UNFPA, The State of World Population 2005, supra note 1, at 108. 25. See Save the Children, supra note 17, at 37 (estimate for 1989-2000). 26. See UNFPA, The State of World Population 2005, supra note 1, at 112. 27. See Akinrinola Bankole et al., Characteristics of Women who Obtain Induced Abortion: A Worldwide Review, 25 Int’l Fam. Planning Persp. 68–77 (1999), http://www. guttmacher.org/pubs/journals/2506899.html (statistical figures obtained through ad hoc surveys and hospital records) (estimates for 1993). 28. See Id. 29. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., UNAIDS/World Health Organization (WHO) Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections – 2004 Update: Philippines 3 (2004), http://www.who.int/GlobalAtlas/PDFFactory/HIV/EFS_PDFs/EFS2004_ PH.pdf (estimates for 2003). 30. See UNFPA, The State of World Population 2005, supra note 1, at 108. 31. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., supra note 29. 32. See UNFPA, The State of World Population 2005, supra note 1, at 108. 33. See UNFPA, Country Profiles, supra note 2. 34. See UNFPA, The State of World Population 2005, supra note 1, at 108. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 35. See Id. 36. See Id. 37. See Saroj Pachauri & K.G. Santhya, Reproductive Choices for Asian Adolescents: A Focus on Contraceptive Behavior, 28 Int’l Fam. Planning Persp. 186–195 (2002), http://www. agi-usa.org/pubs/journals/2818602.html (estimates are for 1998). 38. See Bankole et al., supra note 27. PAGE 126 WOMEN OF THE WORLD:

he Republic of the Philippines is an archipelago between successor.24 Gloria Macapagal-Arroyo was elected to a second the Philippine Sea and the South China Sea, east of Viet- term in 2004. Some of the major challenges confronting the T nam.1 The Philippines was colonized by the Spanish in Philippine government today include internal security threats 1521, and their rule lasted for almost four hundred years;2 dur- from various groups within the country, such as Muslim and ing that time, there was a significant conversion to Roman communist insurgency groups.25 Catholicism.3 On May 1, 1898, the Americans defeated the In 2004, the total population was estimated to be 81.4 Spanish in Manila Bay during the Spanish-American War,4 million,26 approximately 49.6% of whom are female.27 The and Filipinos, led by Emilio Aguinaldo, declared indepen- national language of the Philippines is the Tagalog dialect dence from Spain shortly after the defeat.5 On December 10, of Pilipino; Tagalog and English are the country’s two offi- 1898, Spain ceded the Philippines to the United States, which cial languages.28 Eight major dialects of Pilipino (out of 87 began to occupy the country under the Treaty of Paris.6 The native languages and dialects) are the first languages of more U.S. occupation continued until May 1942, when the Japanese than 85% of the population.29 The ethnic composition of seized control of the island from U.S. forces. The Japanese the Philippines consists of Christian Malay (91.5%), Muslim occupation lasted until September 1945, when Japanese forces Malay (4%), Chinese (1.5%), and other (3%).30 Indigenous finally surrendered to the United States.7 Less than a year cultural communities and peoples, which constitute about later, on July 4, 1946, the Philippines gained its independence 16% of the population, live throughout the country but pri- from the United States.8 marily in the regions of Cordillera and Mindanao.31 The After independence, the Philippines received assistance majority of the Philippine population is Roman Catholic from the United States for postwar reconstruction.9 Suc- (83%), while the rest is Protestant (9%), Muslim (5%), and cessive Philippine government administrations focused on Buddhist and other (3%).32 strengthening ties to neighboring Asian countries and diver- The Philippines has been a member of the United Nations sifying the economy.10 In 1965, President Ferdinand E. Mar- since 1945.33 It is also a member of the Association of South- cos came to power, and by 1972 he had declared martial law, east Asian Nations,34 Asia-Pacific Economic Cooperation,35 citing communist insurrection as his justification.11 Marcos and the Non-Aligned Movement.36 suppressed democratic institutions and restricted civil liberties, primarily ruling by decree and popular referenda.12 The corruption in the Marcos regime plunged the country into I. Setting the Stage: poverty, transforming it from one of Asia’s wealthiest coun- The Legal and Political tries into one of its poorest.13 The assassination of opposition leader Benigno (Ninoy) Aquino in 1983 led to a chain Framework of the of events that resulted in a presidential election in February Philippines 1986, with Aquino’s widow, Corazon Aquino, running as the opposition candidate.14 Marcos’s 21-year rule ended that year Fundamental rights are rooted in a nation’s legal and political when the EDSA15 Revolution (also known as “People Pow- framework, as established by its constitution. The principles er”) forced him into exile;16 Corazon Aquino was installed and goals enshrined in a constitution, along with the pro- as president on February 25, 1986.17 Aquino ruled for six cesses it prescribes for advancing them, determine the extent years until 1992, when Fidel Ramos was elected president.18 to which these basic rights are enjoyed and protected. A con- Ramos declared “national reconciliation” to be his highest stitution that upholds equality, liberty, and social justice can priority.19 He legalized the communist party and granted provide a sound basis for the realization of women’s human amnesty for all rebel groups.20 rights, including their reproductive rights. Likewise, a politi- In 1998, Joseph Ejercito Estrada was elected president21 cal system committed to democracy and the rule of law is with overwhelming popular support for his promise to allevi- critical to establishing an environment for advancing these ate poverty and crack down on crime.22 However, allega- rights. The following section outlines important aspects of tions of corruption led to impeachment proceedings and a the Philippines’s legal and political framework. rebellion in the form of the EDSA Revolution II (or “People A. THE STRUCTURE OF NATIONAL GOVERNMENT 23 Power II”). In January 2001, the country’s Supreme Court The Constitution of the Republic of the Philippines was rati- declared Estrada unable to rule in light of mass resignations fied by a national plebiscite on February 2, 1987, and entered from the government, and administered the oath of office to into force on February 11, 1987.37 It establishes a democratic Vice President Gloria Macapagal-Arroyo as the constitutional and republican state with a sovereign people from whom all PHILIPPINES PAGE 127

government authority emanates, including the power of three readings on separate days, and has been approved by the executive, legislative, and judicial branches of govern- the president.61 If the president takes no action on the bill ment.38 The constitution provides for a presidential system for 30 days, it is automatically approved and becomes law.62 of national government with a bicameral legislature and an If the president vetoes the bill, it returns to the house that independent judiciary.39 originally passed it and is reconsidered.63 A two-thirds vote Executive branch to pass the bill by both houses is then required for the bill to The executive branch of the national government is headed become law.64 by the president, who is chief of state, head of government,40 The people can enact laws, or approve or reject laws passed and commander in chief of the armed forces.41 The presi- by Congress or local legislative bodies, with a petition signed dent nominates and, with the approval of the Commission by at least 10% of all registered voters (of whom at least 3% are on Appointments,42 selects the heads of the various execu- represented in every legislative district).65 tive departments.43 He or she has control over all executive The constitution may be amended or revised upon pro- departments, bureaus, and offices.44 The president is elected posal by a three-fourths vote of all the members of Congress66 by direct vote of the people for a six-year term without the or by a constitutional convention,67 and then ratified by a possibility of reelection.45 majority of the votes cast in a plebiscite.68 The constitution The constitution also provides for a vice president and may also be amended through the initiative of a petition of a cabinet appointed by the president with the approval of at least 12% of all registered voters (of whom at least 3% are the Commission on Appointments.46 The vice president is represented in every legislative district),69 and then ratified by elected by popular vote for a six-year term for no more than a majority of the votes cast in a plebiscite.70 two successive terms.47 He or she may be appointed as a Judicial branch member of the cabinet without needing confirmation by the The judiciary has common law powers of equity and tends Commission on Appointments.48 In case of the president’s to recognize judicial precedent.71 The 1981 Judicial Reorga- death, permanent disability, removal from office, or resigna- nization Act sets out four main levels of courts and provides tion, the vice president shall become president and serve the for special courts.72 At the top is the Supreme Court, below remaining term.49 which is the Court of Appeals, then 13 regional trial courts,73 The president and the vice president may be impeached and finally, at the local level, metropolitan trial courts, munic- from office on grounds that include treason, bribery, corrup- ipal trial courts, and municipal circuit trial courts.74 Special tion, or betrayal of the public trust.50 A two-thirds vote of all courts include the Court of Tax Appeals and the Sandigan- the members of the Senate is necessary for impeachment.51 bayan (a high-ranking court that hears cases of government Legislative branch officials charged with graft and corruption).75 Legislative power in the national government rests with a The Supreme Court, which is headed by a chief justice bicameral Congress consisting of the Senate and the House of and consists of 14 associate justices,76 is the highest court of Representatives,52 and with the people by initiatives and refer- appeal in all civil and criminal matters. It has original and enda.53 The Senate consists of 24 elected members who serve appellate jurisdiction in all cases involving questions about the six-year terms.54 One-half of the membership is elected every constitutionality of any treaty, law, presidential decree, procla- three years.55 The House of Representatives is composed of mation, order, or regulation; it also has appellate jurisdiction not more than 250 members, most of whom are elected from in cases involving a sentence of life imprisonment.77 Mem- the legislative districts in the provinces, cities, and the metro- bers of the Supreme Court and judges of the lower courts politan Manila area that are established in proportion to the are appointed by the president upon recommendation by the size of their respective populations.56 Twenty percent of the Judicial and Bar Council78 and serve until 70 years of age.79 members are elected through a party-list system of registered The Supreme Court has the power to discipline judges of national, regional, and sectoral parties and organizations.57 All lower courts or order their dismissal.80 representatives serve three-year terms.58 The Court of Appeals consists of a presiding justice and Most bills may originate in either house.59 Exceptions 50 associate justices who are appointed by the president.81 It apply to appropriation bills and revenue or tariff bills; bills hears appeals from the regional trial courts and quasi-judicial authorizing an increase in the public debt; bills of local appli- agencies, instrumentalities, boards, and commissions (e.g., cation; and private bills, which must originate in the House the Civil Service Commission and the National Labor Rela- of Representatives.60 A bill may be passed into law by either tions Commission).82 the House of Representatives or the Senate after it has passed The regional trial courts83 hear appeals from the met- PAGE 128 WOMEN OF THE WORLD:

ropolitan trial courts, municipal trial courts, and municipal communities within the autonomous region.102 circuit trial courts,84 and have exclusive original jurisdiction The provisions of the Muslim Code of Personal Laws and over all actions involving marriage, marital relations,85 chil- the tribal codes apply only to Muslims and indigenous com- dren and family cases under the 1997 Family Courts Act, and munities, respectively.103 In cases of conflict between the other serious offenses.86 Muslim or tribal codes and national law, the latter prevails.104 Metropolitan trial courts, municipal trial courts, and Alternative forms of dispute resolution municipal circuit trial courts87 have exclusive original juris- Presidential Decree No. 1508 of 1978, otherwise known as diction over criminal and civil cases of a less serious nature.88 the Katarungagn Pambarangay Law, institutionalized a system Every municipality in the Philippines has its own municipal of amicable, informal dispute settlement at the barangay level trial court.89 without judicial intervention.105 Lawyers are excluded from In cases reaching the courts from barangays (villages), a the entire process.106 The vast majority of disputes are sub- prior attempt to amicably settle the dispute is a precondition ject to proceedings for amicable settlement, with some excep- for formally filing a complaint with a court or government tions.107 This is the only system that is formally accepted and office, with some exceptions.90 Failure to comply with this practiced in all barangays in the Philippines.108 prerequisite may result in the dismissal of the case.91 The Punong Barangay (village chief or barangay chairman) The Court of Tax Appeals is a special court with exclusive is an elected official who heads the system.109 He or she is appellate jurisdiction over appeals from the Commissioner assisted by the Lupong Tagapamayapa (Peace Seeking Com- of Internal Revenue and the Commissioner of Customs on mittee), which is composed of ten to twenty persons who are certain specific issues.92 The Sandiganbayan is another special appointed by the Punong Barangay.110 The Punong Barangay court with jurisdiction over criminal and civil cases involving serves as the chairperson of the committee.111 The parties to graft and corruption by public officers and employees in the the dispute choose, by agreement, a Pangkat Ng Tagapagsu- performance of their duties.93 nod (conciliators panel) composed of three members from In addition to these special courts, the Code of Muslim among the Lupong membership.112 If the parties cannot agree Personal Laws of the Philippines provides for Sharia district on the makeup of the panel, the Punong Barangay selects the courts and Sharia circuit courts, which exist in the Auton- conciliators panel by lottery.113 omous Region of Muslim Mindanao (where the Code of In addition to this system of dispute settlement, other dis- Muslim Personal Laws is enforced) and are applicable only pute resolution mechanisms such as mediation are also avail- to Muslims.94 Sharia circuit courts are equivalent in rank able.114 In 2004, the government enacted the Alternative to municipal circuit trial courts.95 Appeals from the Sharia Dispute Resolution Act, which aims to “actively promote par- circuit courts are heard by Sharia district courts, which are ty autonomy in the resolution of disputes” and “the freedom equivalent in rank to regional trial courts.96 Sharia courts of the party to make their own arrangements to resolve their have jurisdiction over the subject matter within the Code of disputes.”115 The act establishes procedures for mediation and Muslim Personal Laws, which includes matters relating to other alternative dispute mechanisms, including international marriage, divorce, family, and property.97 commercial arbitration. The Autonomous Region in Muslim Mindanao also has a Indigenous cultural communities and indigenous peoples Sharia appellate court, which was created under Republic Act who are not included in the jurisdictions of the Autonomous No. 6734 of 1989, entitled Act Providing for an Organic Act for Region in Muslim Mindanao and the Cordillera Adminis- the Autonomous Region in Muslim Mindanao.98 The Sharia trative Region have the right to use their own commonly appellate court has jurisdiction over cases involving personal, accepted justice and conflict resolution institutions that are family, and property relations, and exercises appellate jurisdic- compatible with the national legal system and internationally tion over all cases tried in Sharia district courts.99 It is equiva- recognized human rights.116 lent to the Court of Appeals, and cases tried in the Sharia B. THE STRUCTURE OF LOCAL GOVERNMENTS appellate court may be appealed to the Supreme Court.100 The Philippines is divided into 17 regions,117 79 provinces, Republic Acts Nos. 6734 and 6766 also create systems of 117 chartered cities, approximately 1,500 municipalities, and tribal courts for the indigenous cultural communities in the 42,000 barangays.118 With the exception of the Muslim parts Autonomous Region in Muslim Mindanao and the Cordil- of Mindanao, which officially became an autonomous region lera Autonomous Region, respectively.101 These courts have in 1990, regions are administrative subdivisions, which are jurisdiction over personal, family, and property rights in composed of provinces119 that are generally grouped on the accordance with the tribal codes of the indigenous cultural PHILIPPINES PAGE 129

basis of similar cultural and ethnological characteristics.120 bly, the regional governor appoints members to a nine-person Provinces are the primary political subdivisions.121 Local cabinet, at least four of whom should come from indigenous governing bodies are established from the provincial level cultural communities.146 The regional governor also appoints down.122 Chartered cities are independent of provinces;123 the cabinet members’ deputies, and the heads and members they do not pay provincial taxes, but have the power to levy of regional government commissions and bureaus.147 The taxes.124 Municipalities are subordinate to provinces,125 and regional governor is assisted by a vice-governor, who may barangays and rural villages are at the lowest level. be appointed as a member of the regional cabinet without Provinces have a governor and a vice-governor.126 The confirmation by the Regional Assembly.148 governor is the chief executive of the province.127 Chartered The regional governor has control over all regional execu- cities are headed by a mayor, who is aided by a vice-mayor.128 tive commissions, boards, bureaus, and offices, subject to Municipalities are headed by a municipal mayor, who is aid- certain exceptions.149 He or she also exercises general super- ed by a municipal vice-mayor.129 Barangays are headed by a vision over the LGUs within the autonomous region.150 Leg- chairperson, who is aided by seven members, a secretary, and islative power is vested in the Regional Assembly, except to a treasurer.130 the extent reserved for the people by provisions on initiatives Provinces, cities, municipalities, and barangays have their and referenda, as provided by law.151 The Regional Assembly own legislative bodies.131 The provincial, city, and munici- is composed of members elected by popular vote, with three pal legislative bodies consist of their respective vice-gover- members elected from each of the region’s congressional dis- nors, vice-mayors, regular members, president of the leagues, tricts.152 The members of the Regional Assembly serve three- president of the federation of youth chairpersons, and sectoral year terms for a maximum of three consecutive terms.153 representatives.132 The law provides that the membership of Directly or through the regional governor, the Philippine these bodies should also include three other sectoral represen- president exercises general supervision over the regional gov- tatives, including one female representative.133 ernment, including the LGUs therein, to ensure that national The barangay is the primary unit for planning and imple- and regional laws are faithfully executed.154 The preserva- menting government policies, programs, plans, and proj- tion of peace and order is the responsibility of the local police ects within the community.134 It also acts as a forum where agencies, while defense and security are the responsibility of people can express their collective views, and where disputes the national government.155 can be amicably settled.135 There is a Sangguniang Kabataan There are indigenous cultural communities and peoples (youth legislative body) in every barangay,136 which is headed not included in the jurisdictions of the Autonomous Region by the Sangguniang Kabataan Chairperson (Youth Legisla- of Muslim Mindanao and the Cordillera Administrative tive Chairperson) who serves as an ex officio member of Region;156 these encompass many tribal groups that have the Sangguniang Barangay (the barangay legislative body).137 indigenous political structures such as, inter alia, the Council Barangay officials and members of the Sangguniang Kabataan of Elders, the Council of Timuays, Bodong Holder,157 and serve five-year terms and no more than three consecutive tribal barangays.158 terms in the same position.138 C. THE ROLE OF CIVIL SOCIETY AND As at the national level, there are mechanisms of recall, NONGOVERNMENTAL ORGANIZATIONS (NGOS) voter initiatives, and referenda for each of the governmen- Since 1986, NGOs in the Philippines have flourished.159 tal bodies described above.139 Each local government unit According to some reports, there are as many as 500,000 regis- (LGU) has the power to create its own sources of revenues tered NGOs in the country.160 The constitution’s Declaration and to levy taxes, fees, and charges.140 The constitution of Principles and State Policies provides that the state “shall mandates the autonomy of local governments,141 but also encourage non-governmental, community-based, or sec- states that the president exercises general supervision over toral organizations that promote the welfare of the nation.”161 local governments.142 The 1992 Local Government Code requires the inclusion of In the Autonomous Region in Muslim Mindanao, regional NGOs in decision-making processes at the local level.162 government powers are exercised through the regional gover- The Philippine Council for NGO Certification provides nor, the Regional Assembly, and special courts.143 Execu- accreditation to NGOs applying for donee institution status if tive power is vested in a regional governor, who is elected by they meet the minimum standards for certification.163 NGOs direct vote by the people in the autonomous region144 and certified by the council may then receive donee institution serves a three-year term for a maximum of two consecutive status by the Bureau of Internal Revenue.164 terms.145 Subject to confirmation by the Regional Assem- PAGE 130 WOMEN OF THE WORLD:

D. SOURCES OF LAW AND POLICY rights of indigenous peoples and indigenous cultural com- Domestic sources munities are enshrined in the 1997 Indigenous Peoples Rights The Philippine legal system is based on Spanish and Anglo- Act, which recognizes, protects, and promotes such individu- American law, and is a mix of the civil and common law als’ rights to social justice, self-determination, empowerment, tradition.165 Domestic sources of Philippine law are the con- cultural identity, and ancestral domain.179 stitution, enactments by Congress, presidential decrees, and Government policies are formulated within the broad executive orders. Other forms of legislation, such as circu- framework of the constitution and its Declaration of Prin- lars, rules, and regulations under legislative or constitutional ciples and State Policies, which include full respect for human authority, are also an important source of domestic law. rights,180 adequate social services, an improved quality of life The 1987 Constitution of the Republic of the Philippines, for all,181 and the promotion of social justice.182 Successive specifically its Bill of Rights article, draws heavily from the medium-term development plans provide comprehensive U.S. model.166 The Bill of Rights guarantees 22 fundamental national policy frameworks for the country’s socioeconom- rights, including equal protection of the laws; freedom of reli- ic and development goals. The Medium-Term Philippine gion; and free access to the judiciary and adequate legal assis- Development Plan 2004–2010 is currently operative.183 The tance for those in need.167 The constitution also contains an plan contains detailed targets and strategies within five broad article on Social Justice and Human Rights, which mandates topic areas: economic growth and job creation; energy; social Congress “[to] give highest priority to the enactment of mea- justice and basic needs; education and youth opportunity; and sures that protect and enhance the right of all people to human anticorruption and good governance.184 dignity, reduce social, economic and political inequalities, and International sources remove cultural inequities by equitably diffusing wealth and The constitution authorizes the president to sign trea- political power for the common good.”168 ties and international agreements. Such agreements become The article includes specific rights and state mandates in effective when ratified by at least two-thirds of all the mem- the areas of labor; agrarian and natural resources reform; urban bers of the Senate.185 The constitution’s Declaration of Prin- land reform and housing; health; women; the role and rights ciples and State Policies notes that the Philippines “adopts of people’s organizations; and human rights.169 The consti- the generally accepted principles of international law as part tution also includes an article on the family, which affords of the law of the land and adheres to the policy of peace, several rights within the family sphere, and an article titled equality, justice, freedom, cooperation, and amity with all Declaration of Principles and State Policies, which contains 28 nations.”186 principles and policies that provide guidance to the govern- The Philippines has ratified the following international ment in performing its functions.170 The inviolability of the treaties: the Convention on the Elimination of All Forms separation of church and state is established as an important of Discrimination against Women and its Optional Proto- principle.171 The constitution also provides that “[the state] col;187 the Convention on the Rights of the Child188 and the shall equally protect the life of the mother and the life of the Optional Protocols on the involvement of children in armed unborn from conception.”172 As state policy, the constitution conflict,189 and on the sale of children, child prostitution, and provides that the state recognizes and promotes the rights of child pornography;190 the International Convention on the indigenous cultural communities within the framework of Elimination of All Forms of Racial Discrimination;191 the national unity and development.173 International Covenant on Civil and Political Rights192 and The domestic legal framework is also established by several its Optional Protocol;193 the International Covenant on Eco- codifications of law, including the 1930 Revised Penal Code, nomic, Social and Cultural Rights;194 the Convention against the 1949 Civil Code, the 1974 Labor Code, the 1974 Child and Torture and Other Cruel, Inhuman or Degrading Treatment Youth Welfare Code, and the 1987 Family Code.174 or Punishment;195 and the International Convention on the Customary laws are followed by some indigenous groups Protection of the Rights of All Migrant Workers and Mem- and by Muslims.175 While many of these laws remain unwrit- bers of Their Families.196 ten, Muslim personal laws were codified into the Code of International consensus documents that the government Muslim Personal Laws by Presidential Decree No. 1083 in has adopted include the 1993 Vienna Declaration and Pro- 1977. This code contains provisions on, inter alia, family rela- gramme of Action; the 1994 International Conference on tions, the legal capacity of persons to act and restrictions on Population and Development (ICPD) Programme of Action; such capacity,176 the creation of Sharia courts as part of the the 1995 Beijing Declaration and Platform for Action; and the judicial system,177 and penal provisions.178 In addition, the 2000 United Nations Millennium Declaration.197 PHILIPPINES PAGE 131

protection. The objectives include, among others, the fol- II. Examining lowing: Reproductive Health ■ reducing morbidity, mortality, disability, and complications from tuberculosis, pneumonias, diarrheas, and Rights dengue, sexually transmissible infections (STIs), In general, reproductive health matters are addressed through including HIV/AIDS, and reproductive tract infec- a variety of complementary, and sometimes contradictory, tions (RTIs);207 laws and policies. The scope and nature of such laws and ■ lowering morbidity and mortality associated with policies reflect a government’s commitment to advancing the cardiovascular diseases,208 cancer,209 diabetes,210 kid- reproductive health status and rights of its citizens. The fol- ney diseases,211 asthma,212 osteoporosis,213 mental dis- lowing sections highlight key legal and policy provisions that orders,214 and diet and nutritional disorders;215 together determine the reproductive rights and choices of ■ providing an “Essential Health Care Package” women and girls in the Philippines. throughout the life cycle to ensure the well-being of the family;216 A. GENERAL HEALTH LAWS AND POLICIES ■ addressing the health issues of “special groups,” The Philippine Constitution declares as state policy that including children in need of protection, women “[t]he State shall protect and promote the right to health of in difficult circumstances, migrant workers, persons the people and instill health consciousness among them.”198 with disabilities, the rural and urban poor, and indig- It also mandates the state to “provide adequate social servic- enous persons;217 199 es” and “adopt an integrated and comprehensive approach ■ determining the health risks of unsanitary conditions to health development which shall … make essential goods, and practices in homes, schools, workplaces, and the health and other social services available to all the people at environment;218 and 200 affordable cost.” The government’s current objectives and ■ promoting healthy attitudes and practices by indi- strategies for promoting and improving health are articu- viduals, families, communities, and business and lated in the Medium-Term Philippine Development Plan industry.219 2004–2010; the National Objectives for Health 1999–2004; (See subsections within “Reproductive Health Laws and the Health Sector Reform Agenda, which was launched and Policies” for information on more specific reproduc- in 1999.201 tive health-related objectives. Also see “Rape” and “Domes- Objectives tic violence” for objectives related to reducing violence The Medium-Term Philippine Development Plan against women.) 2004–2010 contains the broad policy goal of improving the The policy’s primary strategies for carrying out these “accessibility and affordability of essential services,” includ- objectives include the following: 202 ing health-related services. Its specific health objectives ■ increasing financial investments for primary health include the following: care; 220 ■ improve the accessibility, affordability, and quality of ■ developing national standards for planning and health care; implementing local health programs;221 ■ reduce costs of medicine by 50%; and ■ assuring the quality of health care; 222 ■ achieve a health insurance coverage rate of 85% by ■ developing functional, local health systems to carry 2010.203 out public health programs and deliver personal The National Objectives for Health 1999–2004 is a spe- health-care services;223 and

cific health-sector policy formulated by the Department of ■ supporting health workers by harnessing multisec- Health in light of the major challenges to health posed by toral support for a frontline health worker develop- the poor economic status204 of almost half the population,205 ment program in primary health care.224 limited access to health-care services due to a weak hospital (See “Infrastructure of health-care services” for more system, insufficient mechanisms for providing public health detailed information on strategies relating to local health sys- programs, uneven distribution of health and human resourc- tems development.) es, and inequitable health-care financing.206 The Department of Health also formulated the Health These objectives fall under the two broad categories of Sector Reform Agenda in 1999, which calls for reforms in the disease prevention and control, and health promotion and following four areas: PAGE 132 WOMEN OF THE WORLD:

■ health service delivery—by integrating public health LGUs.236 These units provide public health services in their care into the hospital system, upgrading infrastruc- local jurisdiction in the areas of basic health care, family plan- ture, expanding hospital networks, improving patient ning services, maternal and child health care, nutrition, and referral systems, and transforming health facilities into communicable and noncommunicable disease prevention and fiscally autonomous units by instituting fee-for-ser- control.237 vice systems; The devolution of health services to LGUs is one of the ■ health operations—by decentralizing and devolving most significant developments in the Philippine public health responsibility to local governments, and promoting system in the past 20 years.238 The purpose of the policy the development of local health systems; was to transform LGUs into “self-reliant communities and ■ health regulatory structure—by assuring quality of active partners in nation-building by giving them more pow- services, and strengthening the capacities of health ers, authority and resources and corresponding responsibilities regulatory agencies; and and obligations,” and to empower citizens through participat- ■ health financing—by expanding coverage of the ing in “policy and decision-making relative to the quality of National Health Insurance Program (PhilHealth), health care in their community.”239 decreasing out-of-pocket expenditures, and securing The Department of Health has implemented projects 225 funding for vital public health programs. with the support of foreign donor agencies to help offset the Infrastructure of health-care services impact of decentralization on the quality of services. The Government facilities Local Government Unit Performance Program (LPP) was The Department of Health is the principal government a nine-year nationwide project (1994–2003) with the goal agency that formulates national health policies and programs, of expanding local service delivery coverage and improv- and guides the development of local health systems, programs, ing the quality of care provided to women and children.240 226 and services. Since the adoption in 1991 of a policy of Two key components of the LPP were the Department of devolving health-care responsibilities to LGUs (i.e., govern- Health’s Matching Grant Program, which required local ments from the provincial level down) the Department of governments to provide counterpart contributions, and Health is no longer the sole provider of public health services the Sentrong Sigla (Center of Wellness) Program, formerly and is required to “provide assistance” to other national gov- known as the Quality Assurance Program, which awarded ernment agencies, LGUs, civil society (e.g., NGOs and people’s quality certifications to ensure the quality of health services organizations), and the private-sector entities that implement in LGUs.241 The program reportedly enhanced the manage- 227 health programs, projects, and services. Although the ment and performance capacity of LGUs, particularly with Department of Health’s role has been somewhat curtailed, it respect to programs devoted to family planning, safe moth- still directly operates a few large-scale health programs, such erhood, and child survival.242 The Sentrong Sigla Strategic 228 as those relating to HIV/AIDS and tuberculosis; main- Plans for 2003–2007, the second phase of the program, are tains national health facilities; and administrates a limited continuing with modifications.243 number of subnational medical facilities that issue referrals to Another key project was the Integrated Community 229 local health agencies. There is a regional Department of Health Services Project, a six-year project (1997–2003) aimed Health office in each of the 17 administrative regions of the at “upgrading basic health facilities, developing and imple- 230 Philippines. menting key health subsystems, providing quality essential The public health system is made up of approximately drugs, training of health personnel, and mobilizing commu- 231 640 hospitals, 2,405 rural health units, and 14,416 barangay nity participation and support for health.”244 232 health stations. Municipal governments maintain rural Privately run facilities health units and barangay health stations, which are primary The private sector plays a significant role in the delivery health-care facilities; provincial governments maintain the of health care, especially within the devolution framework. 233 provincial and district hospitals. About 40% of all hos- There are approximately 1,068 private hospitals,245 account- pitals are public; these contribute 42,070 beds, or 52% of all ing for about 60% of all hospital facilities in the country and 234 bed capacity in the country. There is approximately one providing almost half of the country’s hospital beds.246 The doctor per 9,727 people, one nurse per 7,361, and one midwife number of private clinics is estimated to be even larger. There 235 per 4,503. are also close to 200 Well-Family Midwife Clinics nation- Pursuant to the devolution framework of 1991, the delivery wide that operate through private-sector investment, dona- and management of basic health services was delegated to tions, and loans.247 PHILIPPINES PAGE 133

Financing and cost of health-care services 54.8% of health spending was paid out of pocket.258 Government financing The National Health Insurance Program or PhilHealth, The national government expenditure on health in 2002 an expansion of the former Medicare program, was instituted was 16.7 billion Philippine pesos (USD 299 million), and the through the enactment of the National Health Insurance Act local government expenditure on health that year was 17.8 bil- of 1995.259 The program, which is administered by the Phil- lion pesos (USD 319 million); these outlays make up a total ippine Health Insurance Corporation (PHIC),260 mandates government expenditure of almost 34.5 billion pesos (approx- compulsory medical coverage for all citizens of the Philip- imately USD 620 million), which represents a decrease of pines.261 In the 2003 Philippines National Demographic and 18.2% from 2001.248 Government health expenditure was Health Survey (NDHS), 30% of households reported hav- 2.7% of the country’s GNP in 2002, a proportion that has ing at least one member with PhilHealth membership.262 fallen steadily from 3.5% in 1997.249 Employees in the private sector constitute the largest pro- Private and international financing portion of all PhilHealth members (43%), followed by gov- Given the limited government resources allocated to health ernment employees (27%), individual payers (15%), indigent care, the private sector and the international community play persons (11%), overseas Filipino workers (2%), and retirees or an important role in the financing of health services. Accord- pension holders (2%).263 ing to figures from the Philippine National Health Accounts There is a dearth of official data on the differential costs of from 2002, private expenditures on health (out-of-pocket health services in the public and private sectors. According to expenses, private insurance costs, Health Maintenance Orga- one unofficial study, the average private hospital bill is about nization costs, employer-based plans, private school plans, etc.) 4.5 times the average public hospital bill.264 The study also totaled 68.6 billion pesos (USD 1.2 billion), an increase of 8% found that public and private hospitals charge charity patients, from the previous year.250 Private sources constitute the larg- uninsured patients, and insured patients differently, with est share of the Philippines’s total health expenditure, compris- insured patients being charged the most.265 A study conducting 59.5% in 2002.251 ed among a sample of midwife-owned clinics266 revealed a Funding for a number of Department of Health projects wide range of prices for various family planning and maternal (including the national population program) is provided health services. For example, costs for the following services through foreign assistance.252 In 2001, there were 35 proj- were: 100 to 350 pesos (USD 1.8 to 6.3) for an IUD insertion; ects financed through funds from international organizations 50 to 300 pesos (USD 0.9 to 5.4) for a pap smear; 30 to 275 such as the Asian Development Bank (ADB), World Bank, pesos (USD 0.5 to 4.9) for a pregnancy test; 10 to 150 pesos Australian Agency for International Development (AusAID), (USD 0.2 to 2.7) for a prenatal visit; and 450 to 3,800 pesos German Technical Cooperation, United States Agency for (USD 8.1 to 68.1) for a delivery.267 International Development (USAID), European Union, and Regulation of drugs and medical equipment United Nations agencies; in addition, funds were provided Drugs and medical devices and equipment are regulated by the governments of Japan, Belgium, and Finland.253 For- by the Department of Health through the Bureau of Food eign-assisted projects are implemented by the Department of and Drugs.268 Before any drug or device is manufactured, Health through the Bureau of International Health Coop- imported, exported, sold, or distributed, it must first be reg- eration and project management offices, in partnership with istered with the bureau.269 The requirements for licensure LGUs and NGOs.254 include, inter alia, proof of safety, efficacy, and good quality Health spending from foreign loans increased by 69.1% based on clinical studies conducted in the Philippines, and from 2001 to 2002, mainly due to the financial support from a full statement of the composition of the drug or device.270 the Hospital Development Program of Austria; the Rural Banning, recalling, or withdrawing drugs or devices from the Water Supply, Sewerage and Sanitation of the ADB; the Early market may be ordered if products are proven to be unregis- Childhood Development of the ADB, and Social Expenditure tered, unsafe, ineffective, or of doubtful therapeutic value.271 Management Project II of the World Bank.255 The Bureau of Health Devices and Technology under the Cost Department of Health is responsible for regulating health A large number of primary health-care facilities and hospi- technologies and medical and health-related devices, and for tals provide basic health services below cost to patients. Public monitoring compliance with regulations.272 hospitals have charity wards for indigent patients where ser- Regulation of health-care providers vices are virtually free.256 Yet, the financial burden of health The Philippine Constitution mandates the government to care falls heavily on individual Filipino families.257 In 2002, “establish and maintain an effective food and drug regulatory PAGE 134 WOMEN OF THE WORLD:

system and undertake appropriate health manpower develop- and facilities must be accredited by the PHIC in order to par- ment and research, responsive to the country’s health needs ticipate in PhilHealth and provide services to members.286 and problems.”273 To receive accreditation, the provider must comply with the The Professional Regulation Commission is tasked with qualities, standards, and procedures set forth by PhilHealth administering, implementing, and enforcing the regulatory regarding qualifications and capacity.287 policies of the government with respect to professionals.274 According to the Senate bill known as the Anti-Medical Individual regulatory boards under this commission cover Malpractice Act of 2004, any medical practitioner who per- different medical and allied professions, including the follow- forms any act constituting medical malpractice or the illegal ing: medicine; midwifery; nursing; nutrition and dietetics; practice of surgery is penalized with imprisonment, revoca- optometry; pharmacy; and physical and occupational ther- tion of his or her license to practice, and a fine.288 The act apy. These boards, among other things, formulate licensure defines malpractice as “any personal injury, including death, exams275 and each board also has its own Code of Ethics;276 caused by the negligent or wrongful act or omission of any violations of such codes may result in the suspension or revo- medical practitioner,” and it defines illegal surgery as a “sur- cation of the registration certificate that allows an individual gery performed to remove healthy human organ/s without to practice his or her profession. The Board of Medicine the consent of the patient, with intent to gain on the part of considers “gross negligence, ignorance or incompetence … the person or persons responsible for such surgery.”289 The resulting in an injury or death of the patient” to be sufficient bill is encountering stiff opposition from medical professionals grounds for reprimand, suspension, or revocation of the cer- who contend that the existing criminal code provisions ade- tificate of registration.277 quately respond to the excesses that might be committed by Once admitted as health services providers, health work- members of the medical profession.290 Neither the Revised ers are subject to the provisions of the Code of Conduct and Penal Code nor the Civil Code makes specific reference to Ethical Standards for Public Officials and Employees, which medical malpractice, however.291 sets out the standards of conduct for public employees, includ- Patients’ rights ing health employees.278 Health personnel are also subject There is no specific law or policy establishing the rights to the Rules and Regulations of the Magna Carta of Public of patients. However, criminal and civil liability for medical Health Workers, which governs the employment conditions negligence can be enforced through relevant provisions of the and conduct of public-sector health workers.279 The Magna Revised Penal Code and the Civil Code.292 In addition, the Carta of Public Health Workers requires health workers to Magna Carta of Public Health Workers guarantees the right discharge their duties humanely, with conscience and dignity; to nondiscrimination on the grounds of race, gender, religion, perform their duties with utmost respect for life; and exercise nationality, party politics, social standing, or ability to pay their duties without consideration of a client’s race, gender, in receiving health care from public health workers.293 (See religion, nationality, party politics, social standing, or ability “Regulation of health-care providers” for more information to pay.280 on the Magna Carta of Public Health Workers.) Traditional practitioners are governed by the Traditional The right to informed consent is recognized by the Code and Alternative Medicine Act of 1997, which led to the estab- of Ethics of the Medical Profession (1960) formulated by the lishment of the Philippine Institute of Traditional and Alter- Philippine Medical Association.294 The code states that “[t]he native Health Care.281 physician has the duty to obtain consent from his patient for Regulation and licensure of hospitals and health facilities any treatment or procedure he intends to undertake and to are the responsibility of the Department of Health’s Bureau of inform him adequately about these matters so that the agree- Health Facilities and Services and PhilHealth.282 All private ment may be characterized as informed.”295 and public hospitals and health facilities must obtain a license Proposed legislation on medical malpractice and patients’ from the bureau before they are allowed to operate. Before a rights is pending before the House of Representatives and hospital is given a license, it must comply with set standards the Senate.296 The document, known as the Magna Carta on service capability, personnel, equipment and instruments, of Patients Rights and Obligations, was introduced in the and physical facility environment.283 The operating license is House and the Senate in 2004.297 It proposes 15 patients’ renewed annually.284 The grounds for revocation or suspen- rights, including the rights to the following:

sion of an operating license include refusing to admit patients ■ medical care and humane treatment;

who cannot pay or issuing a death certiﬁcate as punishment ■ informed consent;

for nonpayment of hospital bills.285 Health-care providers ■ privacy and conﬁdentiality; PHILIPPINES PAGE 135

■ disclosure of and access to information; lation that would strengthen the reproductive health program

■ refusal of diagnostic and medical treatment; through the adoption of a comprehensive and formal legal

■ religious belief; and approach to reproductive health. For example, a bill entitled

■ refusal to participate in medical research.298 Reproductive Health Care Act of 2002 was introduced in Violation of these rights may result in fines and administra- the House of Representatives.304 The proposed bill is based tive sanctions such as the revocation of the license to practice. on the principle that all persons must be allowed “to choose Republic Act No. 8344 of 1996 penalizes personnel of hos- and make decisions for themselves in accordance with their pitals and medical clinics who refuse to provide appropriate religious convictions, culture and the demands of responsible medical support in emergencies or serious cases with impris- parenthood.”305 The draft bill proposed the establishment onment of 6–28 months, a fine of 20,000–100,000 pesos of a Reproductive Health Management Council within the (USD 359–1,793), or both. If the medical professional was Department of Health.306 acting in accordance with an established policy or instruc- It also proposed punishments including imprisonment, a tions from a superior, the director of the facility is subject to fine, or both for the following infractions:307

imprisonment of 4–6 years, a ﬁne of 100,000–500,000 pesos ■ restrictions on the dissemination of family planning (USD 1,793–8,964), or both.299 information;

■ third-party consent requirements for voluntary ster- B. REPRODUCTIVE HEALTH LAWS AND POLICIES ilization and other voluntary sexual and reproductive There is no separate national law or policy addressing repro- health procedures; ductive health in the Philippines. However, the constitution ■ prohibitions by government agents or agencies on provides that the state shall defend “[t]he right of spouses to reproductive health care and services; found a family in accordance with their religious convictions ■ refusals to provide quality health services and infor- and the demands of responsible parenthood.”300 Reproduc- mation based on marital status, gender, sexual ori- tive health is also peripherally addressed in the Medium-Term entation, age, religion, and nature of work, although Philippine Development Plan 2004–2010. Among various conscientious objection is recognized on the condi- goals relating to “social justice and basic needs,” the plan tion that an appropriate referral be immediately pro- calls for an “emphas[is] [on] maternal health, women’s health, vided; and nutrition, and responsible parenthood.”301 ■ provision of limited, incorrect, or inadequate infor- Although there is no specific policy on reproductive mation on reproductive health and sexuality.308 health, the government created the Philippine Reproductive The draft bill also proposed an initial allocation of 50 mil- Health Program in 1998 in an effort to implement the ICPD lion pesos (approximately USD 896,000) to support its pro- Programme of Action.302 The national program identifies the posed policies and objectives, as well as unspecified subsequent following ten priority reproductive health services: appropriations by Congress in the Department of Health’s ■ family planning; annual budget.309 This bill was consolidated with three other ■ maternal and child health care and nutrition; bills into the single Responsible Parenthood and Population ■ prevention and management of abortion complica- Management Act of 2005, which establishes a demographic tions; rationale for a two-child norm policy and repeatedly stresses ■ prevention and treatment of STIs, including RTIs and the illegality of abortion and has not yet been adopted.310 HIV/AIDS; As of November 2004, about 17 bills on population and ■ an Information, Education, and Communication reproductive health were pending in Congress.311 (IEC) component in counseling on sexuality and Regulation of reproductive health technologies sexual health; There is currently no law that regulates assisted reproduc- ■ diagnosis and treatment of breast and reproductive tive technologies in the Philippines although, as noted above, tract cancers and other gynecologic conditions; the prevention and treatment of infertility is one of the ten ■ men’s reproductive health; priority reproductive health services of the Philippine Repro- ■ adolescent reproductive health; ductive Health Program. However, a draft of the 2003 Act ■ prevention and management of violence against Prohibiting the Cloning of Humans and Providing Penalties women; and for Violations Thereof was filed in the House of Representa- ■ prevention and treatment of infertility.303 tives and is pending review by the Congress and Senate.312 There are efforts in the present Congress to introduce legis- PAGE 136 WOMEN OF THE WORLD:

Family planning commonly used among married women is the pill (13.2%), General policy framework followed by female sterilization (10.5%), withdrawal (8.2%), The official position of the present government admin- rhythm (6.7%), the IUD (4.1%), injectables (3.1%) and the istration is to pursue a policy of natural family planning. lactational amenorrhea method (LAM, 0.3%). Just 1.9% of The administration has issued an order to mainstream women in union rely on the male condom320 and only 0.1% natural family planning on the ground that “NFP [natural on vasectomy.321 By age-group, overall contraceptive preva- family planning] is the only method acceptable to the Catho- lence is highest among married women aged 35–39 (56.6%) lic Church.”313 and lowest among those aged 15–19 (25.6%).322 Regional dis- The National Family Planning Policy of 2001 and the Phil- parities in contraceptive use are widespread, and among the ippine Population Management Program (PPMP) Directional 17 administrative regions of the Philippines, the Autonomous Plan (2001–2004) also comprise the national policy framework Region in Muslim Mindanao has the lowest contraceptive on family planning. The policy and plan aim to help couples prevalence, at 16.2%; the Cordillera Administrative Region, and individuals “achieve their desired family size within the which has a significant indigenous population, has a rate of context of responsible parenthood and improve their repro- 48.5%.323 About 20% of births nationwide are unwanted,324 ductive health towards the attainment of sustainable develop- and this percentage increases with the mother’s age (reaching ment.”314 Specific objectives include the following: 80% among those aged 45–49).325 Almost half (45%) of births

■ attaining a national total fertility rate (TFR) of 2.1– to Filipino women are reportedly unplanned.326 2.7 lifetime births per woman; Contraception laws and policies

■ increasing the contraceptive prevalence rate to 60%; Presidential Decree No. 79 for Revising the Population

■ increasing the proportion of family planning use that Act of 1971, enacted in 1972, mandated the Commission on corresponds to modern methods to 32.5%; Population (POPCOM) to “make available all acceptable

■ increasing the private-sector share of reproductive methods of contraception, except abortion, to all Filipino health and family planning service delivery to 40%; citizens desirious of spacing, limiting or preventing preg- and nancies.”327 The act called upon physicians, nurses, and

■ reducing direct government funding for family plan- midwives, as well as personnel of clinics and other com- ning services to 30% of their total funding.315 mercial channels and designated agencies to dispense and To operationalize the current family planning policy, administer contraceptives.328 This legal provision coexists the Department of Health utilizes the following strategies with stricter laws regulating the licensing, sale, and distribu- and activities: tion of contraceptives. For example, Republic Act No. 4729

■ strengthening organizational support (e.g., improving of 1966 mandates that contraceptive drugs and devices must policies and legislation) for service delivery; be sold, dispensed, and distributed through a duly licensed

■ improving the accessibility of family planning ser- drugstore or pharmaceutical company and with the pre- vices and intensifying IEC efforts; scription of a qualiﬁed medical practitioner.329 Moreover,

■ instituting capacity building and training for family according to Republic Act No. 5921 of 1969, drugs, chemical planning service providers; products, and devices that might induce abortion or prevent

■ decentralizing logistics and ﬁnancial management to conception need a proper prescription by a duly licensed local governments and the private sector; physician, and must be made available only in drugstores or

■ improving information technology and statistics hospital pharmacies.330 management and developing a reproductive health In 2001, upon the petition of an antiabortion coali- database; and tion,331 the Bureau of Food and Drugs of the Department

■ strengthening partnerships with NGOs.316 of Health delisted Postinor—the brand name for the emer- Contraception gency contraceptive regimen of 750 mcg levonorgestrel Contraceptive prevalence rates have increased substantially tablets—from its registry of drug products. This decision over the past decades, going from 15.4% of currently mar- immediately prohibited the importation, use, sale, and dis- ried women of reproductive age in the late 1960s, to 17.4% in tribution of Postinor, and all existing inventories of the drug the early 1970s,317 to 48.9% as of 2003, according to the most were recalled.332 This move also reversed the 1999 approval recent NDHS.318 About 33.4% of currently married 15–49- of Postinor for use in government-run Women and Child year-old women, and 21.6% of all women in that age-group, Protection Units for rape survivors to protect them from use a modern method of contraception.319 The method most unwanted pregnancy resulting from rape. PHILIPPINES PAGE 137

In 1976, Presidential Decree No. 1013 amended the Phil- condoms, hormonal injectables, IUDs, natural family plan- ippine Medical Care Act of 1969 to recognize sterilization ning (NFP), LAM, tubal ligation, and vasectomy.349 Some as an acceptable procedure of fertility control.333 Steriliza- methods and services are provided free of charge.350 Hos- tion is covered under PhilHealth334 and the National Family pital-based voluntary sterilization services are covered under Planning Policy; the method is promoted as the first option PhilHealth.351 The Department of Health has instructed for couples who have attained their desired family size.335 all hospitals under its direct administration to create mobile Accredited health facilities may claim reimbursement from voluntary surgical sterilization teams to bring such services the PHIC for voluntary sterilization procedures performed directly to the communities.352 The Department of Health on PhilHealth cardholders.336 Voluntary surgical sterilization has also ordered all regional hospitals and medical centers to clients are required to give written consent in the presence of include in their annual budget funds for mobile voluntary a witness after receiving counseling that the method is per- surgical sterilization teams to ensure their operation.353 manent.337 Officially, spousal consent is not required for the The Department of Health has attempted to improve the procedure, but there is anecdotal evidence that some providers distribution and storage of contraceptives through the estab- ask for the husband’s consent.338 lishment of a Contraceptive Distribution and Logistics Man- Regulation of information on contraception agement Information System that aims to facilitate the direct Republic Act No. 4729 classifies contraceptive drugs and delivery and equitable distribution of contraceptive supplies to devices as prescription products.339 As such, contraceptives governmental and nongovernmental family planning facilities are covered by a 1987 Bureau of Food and Drugs regulation based upon need.354 stating that no prescription products may be advertised or Since the 1960s and until very recently, up to 80% of all promoted in any form of mass media.340 (Such products may, family planning methods that were distributed free by gov- however, be advertised in medical journals and other publica- ernment facilities—such as condoms, pills, and injectables— tions or literature intended for the medical and allied profes- had been donated by USAID.355 However, the agency began sions.341) Consequently, since the condom is sold without a to phase out its contraceptive support to the family planning prescription, it is the only method of contraception that can program in 2003,356 and plans to completely stop donating be promoted or advertised in the mass media. Nonetheless, contraceptives to the Philippines as of 2007. some elected officials and government agencies have taken The policy to decentralize health services has had a sig- arbitrary actions to restrict condom promotion.342 Recent nificant impact on family planning and reproductive health reports indicate, for example, that the Advertising Board of service delivery ever since the funding, staffing, and adminis- the Philippines, or AdBoard, which is the umbrella organiza- tration of these programs were devolved to LGUs.357 The law tion of the advertising industry in the Philippines, has used authorizing devolution mandated that LGUs provide basic obscenity laws to restrict television public service announce- services, including family planning services;358 furthermore, a ments that promote condoms.343 1996 executive order made the LGUs responsible for ensuring The guidelines of the Family Planning Organization of the availability of family planning information and services,359 the Philippines344 stipulate that all individuals of reproductive which has empowered local officials to an unprecedented age (specified as ages 15–44) have the right to information, degree. Local officials, including governors and mayors, have counseling, physical examinations, and contraceptive supplies, been known to issue administrative orders that prohibit the specifically condoms or contraceptive pills.345 delivery of modern family planning methods and essentially Government delivery of family planning services allow only NFP services.360 For example, policies banning all The Philippine government is the major source of family artificial birth control methods, including condoms, in health planning services, with seven out of ten users of family planning clinics operating in Manila City, Laguna, and Puerto Princesa (70.1%) relying on government facilities.346 The Department on the island of Palawan were introduced in 2000, 1995, and of Health is mainly responsible for delivering family planning 2001, respectively. 361 Although the policies in both Laguna services to the public. It assumed this role from POPCOM in and Puerto Princesa were subsequently overturned by new 1998347 in a transfer of responsibility that represents a policy local government administrations, the Manila City policy still shift in the rationale for providing family planning from reduc- exists.362 ing fertility (with women as the primary targets) to improving Family planning services provided by NGOs and the private sector the general and reproductive health status of all.348 The Health Sector Reform Agenda and the Philippine The following methods constitute the official method Reproductive Health Program emphasize the importance of mix and are available in government health facilities: pills, partnerships with NGOs and the private sector in the delivery PAGE 138 WOMEN OF THE WORLD:

of health services.363 Contraceptive supplies such as pills and reach all women of reproductive age and identifies indigenous condoms are available from pharmacies and some supermarket women, women belonging to marginalized groups (i.e., fisher check-out counters (in the case of condoms).364 Almost 200 folks, farmers, and the urban poor) and adolescents in par- Well-Family Midwife Clinics have been established nation- ticular as needing safe motherhood initiatives.378 The spe- wide with financial support from the private sector, USAID, cific objectives of the policy are to reduce maternal and child and individual midwives; these clinics provide family planning health indicators to the following levels:

and maternal and child health-care services, and also under- ■ a maternal mortality ratio of 86 maternal deaths per take commercial contraceptive and marketing activities.365 100,000 live births, from 172 in 1998;

The Philippine NGO Council on Population, Health and ■ a low-birth-weight proportion of 12.0% of all live Welfare, Inc., is an umbrella organization that coordinates births, from 16.6% in 1998; and

international and local NGOs engaged in family planning ■ a neonatal mortality rate of 3.8 newborn deaths per services.366 Together with international and local NGOs, 1,000 live births, from 7.8 in 1998.379 the council sponsors IEC activities to disseminate family plan- The guidelines for safe motherhood programming as stat- ning information and it provides grants and resource man- ed in the Safe Motherhood Policy are anchored in ensuring agement training to ensure the ﬁnancial viability of family that quality maternal and newborn health services meet the planning operations.367 following conditions:

Despite the availability of services in the private sector, most ■ that they be as accessible as possible and located near people reportedly use public-sector services because of factors where women live;

such as the high market price of contraceptives, the limited ■ that they be acceptable to women and responsive range of choices, and a lack of awareness about methods’ avail- to preferences for privacy, conﬁdentiality, and being ability, given the legal restrictions on the advertising of pre- cared for by female health workers;

scription drugs and other contraceptives, except condoms. ■ that essential supplies and equipment be on hand;

Maternal health ■ that continuity of care and follow-up be provided;

According to government studies, two-thirds of the esti- ■ that they be staffed by technically competent health mated nine million Filipino women of reproductive age who workers who provide respectful and nonjudgmental are married or have partners are considered to be at high risk care; and

for unsafe pregnancy because they are under 18 years of age; are ■ that patients be involved in decision-making.380 over 35 years of age; have had four or more pregnancies; have The policy also stipulates that pregnant women should too closely spaced pregnancies; or are concurrently ill.368 Data make at least four prenatal visits that include advice on from national household surveys conducted in 1998 estimated nutrition and health care, a physical examination, tetanus the maternal mortality ratio at 172 maternal deaths per 100,000 toxoid immunization, micronutrient supplementation, live births.369 Based on this ratio, the Department of Health information on early detection and management of compli- estimates that 3,614 maternal deaths occur annually.370 How- cations, and treatment for STIs, anemia, toxemia, and other ever, according to the National Statistics Office, there were risk conditions.381 With regard to delivery assistance, the only 1,579 registered maternal deaths in 1998,371 which suggests policy mandates that all deliveries be attended by a skilled that many deaths go unreported. The statistics office further attendant (defined as a doctor, nurse, midwife, or traditional notes that three out of ten of these deaths were not medically birth attendant with training and education or Department attended.372 According to the 2003 NDHS, although a high of Health accreditation to provide safe deliveries). Deliveries percentage of pregnant women receive prenatal care (88%),373 should also occur in a location that is within two hours of a the majority of births in the five years preceding the survey well-equipped hospital that can handle emergency obstetric still occurred at home (61%),374 with 59.8% of those women cases.382 After giving birth, women should make at least receiving delivery assistance from a qualified health profes- two postpartum visits, one month apart, to allow immedi- sional (doctor, nurse, or midwife),375 and 65.7% receiving post- ate and safe referral of cases needing higher-level care, and to natal care (defined as within 41 days of delivery).376 Of the 2.4 receive follow-up immunizations, family planning services, million women who become pregnant in the Philippines each micronutrient supplementation, and counseling on personal year, about 360,000 suffer a major obstetric complication.377 hygiene and infant care.383 Laws and policies Delivery services and other maternal health services are In 2000, the government introduced its Safe Motherhood provided, in part, through a chain of midwife-owned clinics Policy, which is operational at the national level and aims to with almost 200 branches throughout the country.384 These PHILIPPINES PAGE 139

clinics cater to low- and middle-income families and offer sion allowing abortion if the life or health of the mother is services for a fee. (See “Cost” under “Financing and cost of endangered, an annotation based on the deliberations of the health-care services” for more information on the clinics.) Constitutional Commission that drafted the Philippine Con- Furthermore, the speciﬁc objectives of the National Fam- stitution elaborates that “[w]hen necessary to save the life of the ily Planning Policy of 2001 and the PPMP Directional Plan mother, the life of the unborn may be sacriﬁced; but not when (2001–2004) include reducing the maternal mortality ratio to the purpose is only to spare the mother from emotional suffer- under 100 maternal deaths per 100,000 live births, and lowering, for which other remedies should be sought, or to spare the ing infant and perinatal mortality rates to 32 deaths per 1,000 child a life of poverty, which can be answered by welfare insti- live births and 18 per 1,000, respectively.385 (For more infor- tutions.”397 Authorization of an abortion to save the life of the mation, refer to “Family planning.”) woman requires consultation with a panel of professionals.398 Access to maternal health services at the local level has The Revised Penal Code from 1930 imposes a range of also been addressed through legislation at the local level. The penalties for women undergoing abortion and for providers of 1990 Barangay-Level Total Development and Protection of abortion services. Penalties include the following:

Children Act provides for the establishment of a referral and ■ imprisonment of 30 months to 6 years for any woman support system for pregnant women for prenatal and neonatal who causes or consents to her own abortion;399 and

care and delivery assistance.386 ■ imprisonment of two to six years for any person who Nutrition intentionally causes an abortion with the consent of Protein energy malnutrition and micronutrient deficien- the woman.400 cies are leading nutritional problems in the Philippines. The Health professionals (e.g., doctors, midwives, or pharma- proportion of pregnant women exhibiting vitamin A defi- cists) who are caught providing abortion services or dispens- ciency has been increasing over the years; 50% of pregnant ing abortive drugs also run the risk of having their license to women and more than 40% of lactating women are affected practice suspended or revoked.401 by iron deficiency anemia. According to one study in 1998, The emergency contraceptive Postinor was delisted in 2001 over 10% of mothers were suffering from night blindness.387 by the government on the alleged ground that it is an aborti- Moreover, the prevalence of night blindness was higher among facient; subsequently, an executive body established to review lactating women than among pregnant women. 388 complaints that were filed in opposition to the decision to del- There is no law or policy that specifically addresses nutri- ist Postinor has determined that it is both legal and safe.402 tional deficiencies among pregnant and lactating women. (Refer to “Contraception” for more information.) However, in 2000, the government introduced the Philip- The Philippine Reproductive Health Program of 1998 pine Food Fortification Act of 2000,389 which mandates food identifies the prevention and management of abortion com- fortification of food staples by manufacturers, producers, and plications as one of ten priority areas of reproductive health importers390 based on Department of Health standards.391 services.403 (See “Reproductive Health Laws and Policies” Fortification involves the addition of micronutrients defi- for more information on the Philippine Reproductive Health cient in the Filipino diet to foods that are widely consumed, Program.) In an attempt to address the high level of need for especially by vulnerable groups.392 Fines are imposed for postabortion care, the Department of Health issued a policy in noncompliance with food fortification requirements.393 In 2000 on the prevention and management of abortion and its addition, while the Philippine Plan of Action for Nutrition complications.404 This policy aims to strengthen the capacity does not specifically address maternal nutrition, it does lay out of the country’s health-care system in this area, and to improve objectives to prevent and eliminate malnutrition and establish the accessibility of quality postabortion care services to all food security in general.394 women of reproductive age.405 The policy provides for the Safe abortion following measures:406

About 400,000 unsafe abortions occur in the Philippines ■ prevention and treatment of abortion complications every year, and complications from induced abortions are the by prompt referral and transfer of the patient if need- fourth leading cause of maternal deaths.395 ed; stabilization of emergency conditions; treatment of Abortion laws and policies complications before, during, and after the procedure; The Philippines has a highly restrictive abortion law. The and health education;407

constitution provides that “[the state] shall equally protect the ■ providing counseling on postabortion care, family life of the mother and the life of the unborn from concep- planning, STI prevention, and other reproductive tion.”396 Although there is no explicit constitutional provi- health issues; and408 PAGE 140 WOMEN OF THE WORLD:

■ linking services for the prevention and management information on the prevalence of STIs could not be found. of abortion and its complications to other reproduc- Laws and policies tive health services, which involves, inter alia, iden- The Philippine AIDS Prevention and Control Act of tifying services that the patient may need, such as 1998419 is a comprehensive law that aims to respond to HIV/ treatment for RTIs and STIs, cervical cancer screen- AIDS concerns. Through this law, the government declared 409 ing, and infertility management. its policy to undertake the following steps: The policy calls for the establishment of different types ■ promote public awareness about the causes, modes of services for the prevention and management of abortion of transmission, consequences, and means of preven- and its complications at each level of the health-care system. tion and control of HIV/AIDS through a nationwide Community and rural health units, barangay health stations, educational and information campaign;420 and private clinics are required to perform physical examina- ■ extend to every person with or suspected of having tions and diagnose, manage and make any necessary refer- HIV/AIDS full protection of his or her human rights 410 rals for complications caused by abortion. At municipal and liberties by prohibiting compulsory HIV testing and district hospitals, available services should include uter- and discrimination in any form and by guaranteeing ine evacuation in cases of incomplete abortion; diagnosis their right to privacy and access to basic health and and referral for severe complications; laparotomy and other social services;421 indicated surgery if needed; and supplying blood transfusions ■ promote safety precautions in practices and proce- 411 (with attendant blood cross-typing) if needed. At pro- dures that carry the risk of HIV transmission;422 vincial and regional hospitals or medical centers, treatment ■ positively address and seek to eradicate conditions that for severe complications and bleeding and clotting disorders aggravate the spread of HIV infection, such as pov- 412 should be made available. In addition, information and erty, gender inequality, prostitution, marginalization, education should be offered at each level, as well as follow-up drug abuse, and ignorance;423 and care, including counseling and the provision of appropriate ■ recognize the potential role of affected individuals in 413 family planning services. propagating vital information and educational mes- Regulation of information on abortion sages about HIV/AIDS, and utilize their experiences Government policy allows public health facili- to warn the public about the disease.424 ties to provide information and counseling, including The act penalizes any person who knowingly or negli- referrals, on the prevention and management of abortion gently causes the infection of another person through unsafe 414 complications. and unsanitary practices or procedures in the course of prac- Government delivery of abortion services ticing his or her profession with 6–12 years’ imprisonment As noted above, government policy relating to the pre- and administrative sanctions, such as ﬁnes and the suspension vention and management of abortion and its complications or revocation of the license to practice.425 calls for services to be available at each level of the pub- The act also reconstitutes and strengthens the Philippine lic health-care system. (See “Abortion laws and policies” National AIDS Council, a body created in 1992 by executive for more information.) However, some hospitals have been order.426 The AIDS Prevention and Control Act mandated known to refuse to provide services for women experienc- the council to act as the central advisory, planning, and poli- 415 ing abortion complications. cy-making body for HIV prevention and control.427 Among Abortion services provided by NGOs and the private sector the council’s functions under the AIDS Prevention and Con- Some international NGOs, such as EngenderHealth, have trol Act are the following: been involved in implementing programs and services for the ■ monitoring the implementation of the act and issu- prevention and management of abortion complications and ing orders or recommendations to the implementing 416 postabortion care in collaboration with the government. agencies;428 HIV/AIDS and other sexually transmissible infections ■ developing a comprehensive, long-term national (STIs) HIV/AIDS prevention and control program and From January 1984 to February 2005, 2,231 HIV/AIDS monitoring its implementation;429 and cases were reported to the Philippine HIV/AIDS Registry, ■ evaluating the adequacy of, and advising on the uti- and 84% of these infections were contracted through het- lization of national resources for HIV prevention and 417 erosexual, homosexual, and bisexual sexual contact. Of control.430 418 these cases, 815 (36.5%) were female. Ofﬁcial national-level The council’s 26 members include the heads of selected PHILIPPINES PAGE 141

government agencies, the heads of the leagues of mayors and The intentional transmission of an STI, including HIV/ governors, the chairpersons of the committee on health of the AIDS, through rape is deemed a punishable act by the 1997 Senate and the House of Representatives, NGO representa- Anti-Rape Law. The law considers a rapist’s knowledge of his tives, and others.431 infection with HIV/AIDS or another STI as an aggravating The Rules and Regulations Implementing the Philippine circumstance when such infection is transmitted to the vic- AIDS Prevention and Control Act of 1998 recognize cer- tim, and is punishable with death.445 tain rights of people living with HIV/AIDS and prohibit The Philippine Reproductive Health Program identiﬁes discrimination again them. The regulations require written the prevention and treatment of HIV/AIDS, other STIs, and informed consent before HIV testing,432 and mandate the RTIs as one of the elements of a Reproductive Health Care provision of free pretest and posttest counseling for persons Package.446 The 2000–2004 Medium-Term Plan for Accel- who undergo HIV testing.433 The rules prohibit compulsory erating the Philippine Response to HIV/AIDS, titled Seizing HIV testing as a precondition for employment; admission to the Opportunity, aimed to achieve certain important targets an educational institution; housing; entry or continued stay by 2004; these targets include the following:

in the country; provision of medical services or any kind of ■ establishing an active coordinating mechanism for service; and the enjoyment of human rights and civil liber- HIV/AIDS prevention in at least 60% of local gov- ties, including the rights to travel, enter into marriage, and ernment jurisdictions;447

conduct a normal family life.434 The prohibition on com- ■ initiating HIV/AIDS education in public and private pulsory HIV testing may be lifted with a court order when tertiary and secondary formal education programs,448 a person is charged with certain crimes under the Revised in programs sponsored by the main organized Penal Code (e.g., the crime of rape); when the determination churches and religions in the country,449 and in the of HIV status is necessary to resolve relevant issues under the mass media; 450

Family Code of the Philippines (e.g., in a claim for annul- ■ developing at least ﬁve cost-effective interventions ment on the ground that at the time of marriage, one party to reduce infection through unprotected sex among was afﬂicted with a serious and incurable STI); and in cases high-risk groups and through transfusions with con- of organ and blood donation.435 taminated blood products;451 and

With limited exceptions, the rules guarantee patient con- ■ introducing universal access to HIV and STI preven- fidentiality and protect the right to privacy of an individual tion and treatment in at least five high-infection risk who undergoes HIV testing or is diagnosed with HIV.436 zones.452 However, in the case of minors, HIV test results may be Strategies adopted to pursue the aforementioned goals are released to the parents of the minor.437 Moreover, HIV- currently being continued. infected persons are obligated to disclose their HIV status Several specific Department of Health policies deal with and health condition to their spouse or sexual partner at the STIs. The Guidelines for the Management of Asymptomatic earliest opportune time.438 Women with Reproductive Tract Infections and STIs, formu- Discrimination based on HIV/AIDS status by employers lated in 1997, aim to provide early detection and treatment of (in hiring, promotions, job assignments, benefits, job oppor- RTIs and STIs in asymptomatic women; prevent related com- tunities, and other employment issues) or by educational plications; and establish standards for risk assessment, training, institutions (in admissions, discipline, participation, benefits, and referrals for managing asymptomatic women with RTIs and services) is strictly forbidden.439 Regardless of individu- or STIs.453 The guidelines provide for routine testing for RTIs als’ actual, suspected, or perceived HIV status, their rights to and STIs in family planning and maternal health clinics; risk housing, travel, entry into or exit from the Philippines,440 and assessment of all women who use the health-care system; rou- participation in public office may not be abridged.441 Persons tine testing of pregnant women for syphilis; training for health and relatives of people who have HIV/AIDS (or who are workers on RTI and STI detection; effective and appropriate suspected or perceived to have it) cannot be denied access to services for managing RTIs and STIs; assurance of clients’ credit and insurance services, medical care, and burial servic- privacy and confidentiality of information; and development es.442 Discriminatory acts and polices may be punishable by of an appropriate referral system.454 six months to four years of imprisonment, and a fine of up to Regulation of information on HIV/AIDS and other STIs 10,000 pesos (USD 179).443 Schools, hospitals, and other insti- The Philippine AIDS Prevention and Control Act of 1998 tutions in violation of these provisions may also be stripped of guarantees access to complete HIV/AIDS information at their licenses or permits.444 tourist points of entry and in local communities in schools, PAGE 142 WOMEN OF THE WORLD:

health facilities, workplaces, and during seminars for Filipino are adolescents between the ages of 10 and 19.467 The 1998 overseas workers before they leave the country.455 However, NDHS showed that an estimated 10.8% of rural girls and 4.7% the act also specifies that HIV/AIDS education in schools of urban girls aged 15–19 had already begun childbearing.468 should not be used “as an excuse to propagate birth con- In 1998, 6.3% of reported maternal deaths were the deaths of trol or the sale or distribution of birth control devices” and girls aged 15–19.469 According to the 2002 Young Adult Fertil- should not utilize “sexually explicit materials.”456 The act ity and Sexuality Study, a periodic survey of young people’s requires all commercially available or donated condoms to sexuality and fertility behavior, 31% of young adult males and include literature on “[their] efficacy against HIV and STD 15% of young adult females report having engaged in pre- infection, as well as the importance of sexual abstinence and marital sex.470 Approximately 70% of young adult males and marital fidelity.”457 68% of young adult females reported not using any method Surveillance of protection against pregnancy or STIs the last time they The Philippines uses passive and active surveillance sys- had sex.471 Misconceptions also abound: for example, 28% tems to monitor the epidemiology of HIV/AIDS and STIs in of young adults believe that HIV/AIDS is curable, and 73% the country. The HIV/AIDS Registry, established in 1987, is think that they are immune to HIV.472 the passive surveillance system and receives its data from con- There are no official data on the incidence of STIs among firmed cases of HIV reported by hospitals, laboratories, blood adolescents. However, among registered HIV/AIDS cases banks, and clinics.458 The National HIV Sentinel Surveillance as of February 2005, 1.5 % of those infected were below age System, which was established in 1993, consists of two active 10, 1.9% were aged 10–19, and 30% were aged 20–29.473 Of surveillance systems and aims to provide an early warning those aged 29 and below, 53.9% were female.474 Indigenous of any increase in HIV-seroprevalence.459 The first of these youth face even greater barriers than others in access to basic two systems, known as HIV Serologic Surveillance, moni- social services, including health care, since they generally live tors seroprevalence among high-risk groups, including regis- in remote areas that have poor infrastructure and often lack tered female sex workers, freelance female sex workers, men facilities. In the southern regions of the Philippines, this limit- who have sex with men, and intravenous drug users.460 The ed access to health care, which is aggravated by armed conflict second active system is the Behavioral Sentinel Surveillance, between the government and rebel groups, often leads to a established in 1997, which monitors the level of risk behaviors high overall prevalence of communicable diseases, high mor- among high-risk groups.461 In 2003, a third system, the Sen- tality rates, widespread malnutrition, and poor sanitation.475 tinel STI Etiologic Surveillance System, became operational. The inadequacy of data on indigenous youth has been identi- This system tracks STI trends to determine their implications fied by the government as a problem.476 for HIV transmission.462 Laws and policies Medical research The constitution provides that “[t]he State recognizes the The National Guidelines for Biomedical/Behavior- vital role of the youth in nation-building and shall promote al Research, issued by the Philippine Council for Health and protect their physical, moral, spiritual, intellectual and Research and Development, specify directives for HIV/AIDS social well-being.”477 It also defends “the right of children to research.463 They provide that in the course of biomedical assistance, including proper care and nutrition, and special pro- research involving persons living with HIV/AIDS or testing tection from all forms of neglect, abuse, cruelty, exploitation for HIV/AIDS, a physician or investigator must strictly con- and other conditions prejudicial to their development.”478 form with requirements of medical confidentiality, informed The Special Protection of Children against Abuse, Exploi- consent, and respect for the dignity of the individual, particu- tation and Discrimination Act of 1992 also declares as state larly during pre- and posttesting, counseling, and follow-up.464 policy the provision of “special protection to children from Researchers must submit HIV/AIDS statistics (all detected or all forms of abuse, neglect, cruelty, exploitation and discrimi- attended cases of HIV) to the Department of Health for public nation, and other conditions, prejudicial to their develop- health purposes and to facilitate data collection for situation ment.”479 With respect to indigenous youth, the act entitles analyses, planning, and policy formulation.465 The physician children of indigenous cultural communities access to health or investigator should strictly observe the principles of confi- and nutrition services,480 and protection from any form of dentiality and informed consent in these efforts.466 discrimination.481 A person found guilty of discriminating Adolescent reproductive health against children of indigenous cultural communities is penal- According to the 2002 Philippine Statistical Yearbook, ized with six months’ imprisonment and a fine.482 21.6% of the total population, or 17.1 million individuals, In 2000, the Department of Health issued the Adolescent PHILIPPINES PAGE 143

and Youth Health Policy in recognition of the health needs of for parents, service providers, and adolescents; advocacy and young people in the Philippines.483 The policy provides for IEC programs; partnerships with NGOs; and an adolescent the creation of the AYH Sub-Program under the Program for reproductive health database system.495 Children’s Health, Cluster for Family Health, with the objec- In 1997, POPCOM, with the assistance of the national and tive of instituting “a comprehensive program for the health local governments and NGOs, launched “Hearts and Minds,” of adolescents and youth.”484 The program aims to reduce a nationwide IEC campaign that teaches young Filipinos about morbidity and mortality among adolescents and youth; elimi- sexual health, responsible adulthood, and parenthood.496 nate unwanted pregnancies, abortions, and STIs; eliminate Since the early 1970s, the Department of Education (previ- disabilities and accidents caused by drug abuse and destruc- ously known as the Department of Education, Culture and tive behaviors; promote health and development; and pro- Sports), has implemented reproductive health and family vide quality adolescent and youth-friendly health programs planning IEC projects for adolescents through the Population and services,485 including reproductive health, nutrition, Education Program (PopEd) and the Population Awareness immunization, psychosocial health, oral health, sexual health, and Sex Education Program (PASE).497 Introduced in 1972, and environmental safety.486 The guidelines under this pol- PopEd covers topics in reproductive health, gender equality, icy stipulate that health-care services (including contracep- HIV/AIDS, family life, and responsible parenthood.498 The tion) for young people should be “accessible and available at Revitalized Home Guidance Program, which was established all times”;487 the privacy and confidentiality of adolescents in secondary schools, has been successful in improving ado- should be preserved;488 services should be directed toward lescents’ relationships with the opposite sex; in increasing gender-specific concerns;489 and special services, including young people’s knowledge about STIs, HIV/AIDS, courtship, medical, legal, rehabilitative, and support services, shall be friendship, dating, and adolescent development; and in estab- available to youths with disabilities and those who are victims lishing Teen Health Centers.499 The School-Based Wom- of sexual violence and abuse.490 en’s Health Project promotes reproductive and adolescent In support of the policy’s goals, the Department of Health health.500 The Department of Education also launched the developed the Adolescent and Youth Health and Development Feminine Hygiene Education Program in 1994, which pro- Program (AYHDP). This program specified the following vides elementary and secondary school students with lectures steps for achieving the aforementioned goals by 2004:491 on physiological and biological changes during puberty, and

■ reduce the proportion of teenage girls (aged 15–19) information on reproductive health.501 A program sponsored who begin childbearing to 3.5%;492 by the European Commission aims to reduce adolescents’ risk

■ increase the proportion of adolescents who seek of STIs, including HIV/AIDS, and other reproductive health health care to 50%; problems through peer counseling, community-based educa-

■ raise the proportion of adolescents with basic knowl- tion, and the provision of medical services.502 edge of fertility, sexuality, and sexual health to 80%; Delivery of adolescent reproductive health services by NGOs

■ increase the percentage of facilities providing basic Adolescent reproductive health programs offered by health services for adolescents and youth to 70%; NGOs are restricted primarily to IEC components and refer-

■ establish specialized services in 50% of government rals to government clinics for contraceptive services because hospitals for adolescents who suffer from occupational of opposition from religious groups.503 The Family Planning illnesses and substance abuse, and who are victims of Organization of the Philippines recognizes the right of ado- rape and violence; lescents to receive reproductive health services—including

■ integrate gender-sensitivity training and reproductive information and education, counseling, physical examina- health education in the secondary school curriculum; tions, and contraceptive supplies (i.e., condoms or pills)—and and thus implemented its Development and Family Life Education

■ establish resource centers or one-stop-shops for ado- for Youth program in 1983.504 The program focuses mainly lescents and youth in each province.493 on empowering Filipino youth in addressing their sexual Likewise, the PPMP Directional Plan (2001–2004) set forth and reproductive health concerns, and it has established Teen several speciﬁc goals and targets for improving and promot- Centers that provide a comprehensive package of IEC activi- ing the reproductive health of young people, and for reducing ties, peer counseling, and reproductive health services.505 the incidence of early marriage, teenage pregnancy, and other The Foundation for Adolescent Development offers cam- reproductive health problems.494 The plan also called for the pus-based educational programs, including SEXTERS, an establishment of youth centers; programs of capacity building out-of-classroom program that nurtures the social, emo- PAGE 144 WOMEN OF THE WORLD:

tional, and sexual development of adolescents.506 The foun- mortality, and migration affect population size, structure, dation also provides adolescent reproductive health services and distribution, and how population growth affects the through youth-friendly facilities known as Teen HealthQuar- government’s ability to provide basic services such as edu- ters; capacity building for adolescents on health, sexuality, and cation, health, and employment.518 The PPMP, under the development in colleges and universities; information and guidance of the Population and Sustainable Development peer counseling on STIs, including HIV/AIDS; and support Framework, seeks to fulﬁll the reproductive health and fam- programs for Filipino youths.507 ily planning needs of Filipino citizens in order to facilitate The Philippine NGO Council on Population, Health the country’s development and improve citizens’ quality of and Welfare, Inc., produces and implements reproductive life.519 The PPMP Directional Plan (2001–2004) identiﬁes health, family planning, population, and adolescent repro- four major areas of concern: reproductive health and family ductive health learning modules for the Department of planning; adolescent health and youth development; popula- Education’s nonformal education accreditation and equiva- tion and development integration; and resource generation, lency program.508 programming, and mobilization.520 It enumerates the follow- The Philippine Medical Women’s Association provides ing important objectives:

nationwide IEC and family planning programs for adolescents ■ help couples and parents achieve their desired family and youths.509 Other NGO projects are the Women’s Media size within the context of responsible parenthood for Circle’s BODYTALK TV series and its multimedia advocacy sustainable development;

campaign for young women known as XYZ, and the Reme- ■ improve the reproductive health of individuals, and dios AIDS Foundation’s Youth Zone.510 reduce maternal, infant, and under-five mortality; and C. POPULATION ■ develop policies for sustainable development through The country’s annual population growth rate has declined balancing population distribution, economic activi- from 3.0% in the 1960s511 to an average annual rate of 2.32% in ties, and the environment.521 the 1990s. The rate of growth over the past decade, which the To achieve these objectives, the program utilizes the follow- government still considers to be high,512 is attributed to the ing strategies: slow pace of decline in the country’s TFR, from 4.1 lifetime ■ providing information and services to assist families births per woman in 1993 to 3.5 in 2003.513 in achieving their desired family size through the In the early 1970s, the Philippine Population Program Responsible Parenthood/Family Planning Program; (which was at that time called the National Population Pro- advocating for reproductive health and family plan- gram) adopted a clinic-based approach to providing family ning issues and gender equity; and designing strate- planning services, but the rural population had poor access gies to increase male responsibility in reproductive to such services because clinics were located mainly in urban health and family planning; areas.514 This approach was modified by the Total Integrated ■ ensuring the accessibility of reproductive health and Development Approach (1975) and the National Population population IEC activities and services for adolescents; Family Planning Outreach Program (1977), which utilized ■ integrating population variables into national, a community-based approach to integrate family planning regional, and local development policies, plans, and services with other development activities in rural areas.515 In programs, as well as advocating for their integration; the late 1980s, the Philippine Population Program underwent and another notable transformation by adopting a quality-of-life ■ mobilizing budgetary allocations, private-sector approach, in lieu of a strict population-reduction approach, partnerships, NGOs, and donor agencies to make the which included family formation, the status of women, PPMP financially sustainable.522 maternal and child health, child survival, and mortality and Implementing agencies morbidity as key considerations.516 The main government agency tasked with addressing Laws and policies population concerns is POPCOM, under the Department In the 1990s, the Philippine Population Program adopted of Health.523 POPCOM, founded in 1971 through Repub- the Population and Sustainable Development Framework,517 lic Act No. 6365, the Population Act of the Philippines, is which recognizes the interconnectedness between population the primary government body that deals with population levels, resources, and the environment, and aims to balance issues,524 although subsequent revisions to the act have cre- them. This approach takes into consideration how fertility, ated a larger role for input from public and private orga- PHILIPPINES PAGE 145

nizations and individuals with respect to diverse religious beliefs and values.525 POPCOM operates under the leader- III. Legal Status of ship of a 14-member Board of Commissioners, which rep- Women and Girls resents both the public and private sectors.526 The central office of POPCOM is headed by the Office of the Executive The health and reproductive rights of women and girls can- Director; the technical and support services divisions of not be fully understood without taking into account their this office manage the population program on a national legal and social status. Laws relating to their legal status level, while 15 regional POPCOM offices are in charge of not only reflect societal attitudes that shape the landscape regional operations.527 of reproductive rights, they directly impact their ability to Responsibility for the oversight of POPCOM has exercise these rights. A woman or adolescent girl’s marital changed hands several times over the years. In 1987, the status, her ability to own property and earn an independent commission was transferred from the Office of the Presi- income, her level of education, and her vulnerability to vio- dent to the Department of Social Welfare and Develop- lence affect her ability to make decisions about her reproduc- ment,528 where government funding for family planning tive and sexual health and to access appropriate services. The services was effectively frozen because of the department’s following section describes the legal status of women and failure to prioritize the family planning program.529 Con- girls in the Philippines. sequently, in 1988, the Department of Health took over A. RIGHTS TO EQUALITY AND NONDISCRIMINATION responsibility for implementing family planning services, The constitution guarantees that “[n]o person shall be while POPCOM retained its focus on coordinating popu- deprived of life, liberty or property without due process of 530 lation and development issues. In June 1990, POPCOM law, nor shall any person be denied equal protection of the 531 was transferred back under the Office of the President, laws.”538 In its Declaration of Principles and State Policies, and then in 1991, to the National and Economic and the constitution provides that the state “values the dignity of 532 Development Authority. Finally, in March 2003, it was every human person and guarantees full respect for human again transferred to the Office of the President and placed rights.”539 It also “recognizes the role of women in nation- under the control and supervision of the Department of building, and shall ensure the fundamental equality before the 533 Health. The reason cited for this move was “to facilitate law of women and men.”540 coordination of policies and programs relative to popula- The 1992 Women in Development and Nation Build- 534 tion….” ing Act further assures women the “rights and opportunities Since the health care devolution policy was institut- equal to that of men.”541 To this end, the state is obliged to ed in 1991, LGUs have assumed a prominent role in the allocate a “substantial portion” of official development assis- development and implementation of population programs tance funds for women’s programs and activities;542 to ensure and projects. The LGUs’ work includes strengthening that women benefit from and participate directly in develop- local population offices, and identifying, generating, and ment programs and projects;543 and to remove gender bias in 535 allocating resources for local population programs. An government agency regulations, directives, and procedures.544 important aspect of POPCOM’s current mandate is to The act guarantees women the right to enter into contracts;545 ensure “high quality professional development programs to become a member of any club or other public organiza- for Population, Responsible Parenthood and Reproduc- tion;546 and to equal opportunities for appointments, admis- tive Health, which will enhance the competencies and sion, training, graduation, and commissioning in all military strengthen the capability of LGUs,” thereby “[e]nabling schools.547 In the case of full-time homemakers, the act pro- men, women, couples and families to make responsible vides for insurance or social security coverage of up to one- decisions to meet their expressed needs in timing, spac- half of the salary and compensation of the working spouse, 536 ing and number of children.” Thus, POPCOM func- with the working spouse’s consent.548 tions as a technical and information resource provider for The Indigenous Peoples Rights Act of 1997 provides that LGUs (i.e., it identifies, generates, and allocates resources); women from indigenous communities shall have equal social, as an advocate for strategic partnerships and policies for the economic, political, and cultural rights and opportunities as Philippine Population Program; and as the coordinating, men in their communities.549 It affords “due respect and rec- supervising, and evaluating agency for LGUs that imple- ognition” for the participation of indigenous women in all 537 ment population programs and projects. levels of decision-making and the development of society.550 PAGE 146 WOMEN OF THE WORLD:

The act also legally guarantees full access to education, mater- funds, for gender and development programs and projects.561 nal and child health care, health and nutrition, and housing Formal institutions and policies services, as well as vocational, technical, professional, and oth- The National Commission on the Role of Filipino Women er forms of training for indigenous women.551 (NCRFW), created in 1975 by presidential decree, is the main In addition, several national policies seek to ensure women’s governmental body focused specifically on women’s affairs equality, particularly within the area of development. The Phil- under the Office of the President.562 The NCRFW, in coor- ippine Plan for Gender-Responsive Development (PPGD) for dination with the National Economic Development Authori- 1995–2025 is the government’s 30-year blueprint formulated to ty, is responsible for monitoring various government agencies’ guide policies, programs, and projects for “pursuing full equal- implementation of the PPGD for 1995–2025,563 and conducts ity and development for women and men.”552 The plan envi- periodic assessments and updates to the plan.564 Pursuant to sions development that is “equitable, sustainable, and free from its mission, the NCRFW is authorized to issue orders, circu- violence, respectful of human rights, supportive of self-deter- lars, or guidelines and to constitute appropriate interagency mination and the actualization of human potentials, and par- committees.565 In addition to its monitoring functions, the ticipatory and empowering.”553 The PPGD incorporates the NCRFW is responsible for ensuring the gender-responsive- goals of the Beijing Platform of Action and seeks to eliminate ness of national development plans, as well as for coordinating gender-based discrimination, and focuses on the advancement the preparation, assessment, and updating of the 1989–1992 and empowerment of women as a disadvantaged group.554 It Philippine Development Plan for Women and ensuring its sets forth a collaborative strategy between government, NGOs, effective implementation.566 and the private sector555 to achieve its gender-related goals,556 The Planning, Monitoring and Evaluation Division of which all government agencies and entities at the national, sub- the NCRFW has a specific mandate to monitor and assess national, and local levels are required to fully implement.557 national implementation and compliance with international The Framework Plan for Women 2001–2004 is an interim treaties and policy documents on women, such as CEDAW program within the context of the PPGD that sets forth “more and the Beijing Platform for Action.567 It fulfills this obliga- specific, doable and results-focused” strategies and intervention by being part of a multiagency mechanism for monitor- tions than the PPGD.558 This plan has focused on the three ing and implementing the country’s international obligations. following priorities: The NCRFW is a member of a working group on Economic,

■ the economic empowerment of women (through Social, and Cultural Rights within the Inter-agency Coor- measures such as enhancing their access to capital, dinating Committee on Human Rights, which monitors markets, information, and technology; offering wom- implementation of CEDAW and other treaties, and prepares en skills training; ensuring equal treatment of women government responses to issues involving economic, social, workers; and giving women greater participation in and cultural rights, including those arising from the promo- economic decision-making bodies); tion and protection of women’s rights.568

■ the protection and fulﬁllment of women’s human The Philippine Commission on Human Rights was cre- rights (by strengthening delivery of basic social ated by the 1987 constitution.569 The commission performs services; instituting an effective judicial system for a number of important functions, which include monitoring survivors of violence against women; and enacting the government’s compliance with international treaty obli- antidiscrimination legislation); and gations on human rights.570 In collaboration with the Inter-

■ gender-responsive governance (through encouraging agency Coordinating Committee on Human Rights created “active and meaningful” participation of women in in 1997,571 the commission responds to urgent requests for decision-making bodies, and the proper utilization of information about human rights violations allegedly commit- the gender and development budget).559 ted in the country and prepares up-to-date and comprehen- The Implementing Rules and Regulations for the Women sive reports for timely submission to United Nations human in Development and Nation Building Act (1992) directs all rights treaty monitoring bodies.572 government agencies to allocate 5–30% of foreign and domestic The task of monitoring the progress of the PPGD for 1995– official development assistance funds for programs and activi- 2025 and the status of women generally has been enhanced by ties for women.560 This was later modified by the 1998 General a conscious effort in government to generate gender statistics. Appropriations Act, which ordered all government agencies and The Women in Development and Nation Building Act (1992) instrumentalities, including LGUs, to set aside a minimum of instituted a sex-disaggregated national data collection system 5% of their total appropriations, not just of official development for both monitoring and programming purposes.573 The PHILIPPINES PAGE 147

National Statistical Coordination Board has also enjoined the customary laws and practices of indigenous peoples. all agencies to promote gender concerns in the generation The Indigenous Peoples Rights Act recognizes the rights of of statistics.574 indigenous groups to use “their own … customary laws and Currently pending in Congress is House Bill No. 2051, practices within their respective communities and as may be which aims to “ensure that the rights of persons discrimi- compatible with the national legal system and with inter- nated against shall be protected and respected” and creates nationally recognized human rights.”585 The Family Code an antidiscrimination board to that end.575 The bill further provides that Muslims and members of ethnic cultural com- provides that it will be the policy of the state “to work actively munities may be exempt from the requirement of a marriage for the elimination of all forms of discrimination that offends license, so long as these marriages are solemnized according to the equal protection clause of the Bill of Rights and the State the communities’ customs, rites, or practices.586 obligations under human rights instruments acceded to by The Family Code states that “[m]arriage is a special con- the Republic of the Philippines, particularly those discrimina- tract of permanent union between a man and a woman tory practices based on sex or sexual orientation.” 576 entered into in accordance with law for the establishment of Homosexual activity is not an offense under Philippine conjugal and family life.”587 Two essential requisites for mar- law. However, there is currently no law explicitly protecting riage are the legal capacity of the contracting parties and vol- homosexuals from discrimination or recognizing and pro- untary consent before a solemnizing officer.588 In addition, moting their particular rights. the marriage must be solemnized before an authorized offi- Non-discrimination on the basis of sexual orientation cial,589 with at least two witnesses of legal age, and the parties Since the mid-1990s, a number of legislative efforts have must obtain a valid marriage license.590 The absence of any of sought to protect the rights of homosexuals. Among recent these requisites renders the marriage void.591 bills is the Anti-discrimination Act passed by the House of Any individual at or above the age of 18 may contract Representatives in 2004, which prohibits discrimination marriage in accordance with the law.592 A marriage between based on sexual orientation in areas such as employment, individuals aged 18–21 who have never been married requires education, health services, public service (including military written parental consent;593 without such consent it may be service), and commercial and medical establishments.577 Also, annulled.594 (Individuals aged 21–25 intending to marry a bill is pending in the House of Representatives that penalizes are legally obligated to seek parental “advice.”595) Both par- the discriminatory acts defined above.578 ties involved in a marriage requiring parental consent must undergo marriage counseling.596 In the absence of these two B. CITIZENSHIP prerequisites, the issuance of the marriage license is suspend- Article IV of the constitution sets out the particulars of citi- ed for three months.597 No marriage license is required for zenship. Philippine citizenship is conferred automatically to the marriage between a man and a woman who have lived those whose fathers or mothers are citizens of the Philipinnes; together as husband and wife for at least five years, and who in addition, it may be acquired by those born to Filipino have no legal impediment to marry each other.598 mothers before January 17, 1973 who elect to obtain citizen- The Family Code requires that a husband and wife live ship upon attaining the age of majority.579 together; observe mutual love, respect, and fidelity; and ren- C. MARRIAGE der mutual help and support.599 The code prescribes an obli- The constitution recognizes the family as the foundation of gation of support between spouses, legitimate ascendants and the nation,580 and affords state protection to the “inviolable descendants, parents and their children, and legitimate broth- social institution” of marriage, which serves as the foundation ers and sisters.600 A spouse who in bad faith refuses to comply of the family.581 The constitution also mandates the state to with these obligations may be held liable for damages under defend “the right of spouses to found a family in accordance the Civil Code.601 with their religious convictions and the demands of respon- Spouses are jointly responsible for deciding the location sible parenthood.”582 of the family residence,602 supporting their family using their In general, marriages and family relations in the Philip- communal property or the income from their separate prop- pines are governed by the Family Code and the Civil Code. If erties,603 and managing their household.604 Either spouse both parties are Muslims, the Code of Muslim Personal Laws may also engage in a profession without the consent of the applies.583 If only the male party is a Muslim, the code will other, but either spouse may object to the other’s profession apply upon both parties’ agreement.584 on “valid, serious and moral grounds.”605 Provisions in the Family Code and other laws recognize The Family Code prescribes monogamy, and bigamous PAGE 148 WOMEN OF THE WORLD:

marriages are voidable and illegal; bigamy is punishable with business is in accordance with Islamic modesty and virtue.622 imprisonment of 6–12 years.606 In addition, the code prohib- The code recognizes that men are permitted to have its marriages among blood relatives (ascendants, descendants, multiple wives under Islamic law, but advises that a man and siblings), collateral relatives (up to the fourth civil degree), should practice monogamy “unless he can deal with them relatives by marriage (affinal relatives within the third degree, with equal companionship and just treatment…and only in stepparents, and stepchildren), and relatives by adoption.607 exceptional cases.”623 The Revised Penal Code criminalizes certain acts of mari- The Code of Muslim Personal Laws prohibits marriages tal infidelity and prescribes different degrees of punishment among parties of consanguinity (ascendants, descendants, for men and women. A married woman is considered guilty and siblings within the third degree), of affinity (affinal rela- of adultery upon engaging in sexual intercourse with a man tives within the third degree, stepparents, and stepchildren), other than her husband;608 she may be punished with two to and of fosterage.624 six years of imprisonment.609 A married man is guilty of the D. DIVORCE crime of concubinage if he keeps his mistress in the conjugal There is no specific divorce law for non-Muslims in the Phil- dwelling, has sexual intercourse with a woman who is not his ippines, but the Family Code outlines provisions for legal wife under “scandalous circumstances,” or cohabits with the separation, marriage annulment, and declaration of nullity.625 woman in any other place.610 Men found guilty of concubi- Marriages may be declared null and void from the inception nage are penalized with imprisonment of six months to four where there is bigamy or polygamy,626 incest,627 psychological years.611 A bill aiming to correct the disparity between the treat- incapacity to comply with the essential marital obligations,628 ment of husbands and wives in the matter of marital infidelities or an underage (below 18 years of age) spouse, even when the is currently pending in the House of Representatives.612 marriage had the consent of parents or guardians.629 A mar- There is no legal recognition of marriage or partnership riage may be annulled if the following grounds existed at the between individuals of the same sex.613 time of the contract: Marriage between Muslims ■ lack of written parental consent for those marrying Marriages between Muslims are regulated under the Code who are aged 18–21; of Muslim Personal Laws, and the requisites for a valid Muslim ■ unsoundness of mind of either party; marriage are the legal capacity to marry, freely given consent, ■ consent by either party was obtained through fraud, an offer (ijab) and an acceptance (gabul), and a stipulation of force, intimidation, or undue influence;630 customary dower (mahr).614 Muslim males age 15 and above ■ physical incapacity to consummate the marriage; or and Muslim females who have reached puberty, presumed to ■ affliction with a serious and incurable STI.631 be at age 15, may marry.615 Muslim females who attain puberty The concealment of either partner’s homosexuality or the between the ages of 12 and 15 may marry upon petition by wife’s pregnancy by a man other than her husband at the time their guardian (wali) to the Sharia district court.616 Such a mar- of the marriage constitute fraud632 and may be grounds for riage, however, is regarded as a betrothal and may be annulled the annulment of the marriage.633 A judicial annulment pro- upon the petition of either party within four years after he or nounced by a court enables either party to remarry.634 The she has reached puberty, provided no voluntary cohabitation Family Code also provides that when a foreigner enters into has taken place and the wali who contracted the marriage was a valid marriage with a Filipino citizen and subsequently anyone other than the girl’s father or paternal grandfather.617 obtains a divorce enabling the foreign spouse to remarry, the Echoing the Family Code, the Code of Muslim Personal Filipino spouse also gains the capacity to remarry under Phil- Laws also provides that husband and wife must live togeth- ippine law.635 er and observe mutual love, respect, and fidelity, and render The law creates certain restrictions on the ability of wom- mutual help and support.618 The husband decides the location en to remarry. A “divorced”636 woman who remarries within of the family residence, but the wife is not compelled to live 301 days of the annulment or dissolution of her marriage, or with her husband if her dower is not satisfied as stipulated, or before the date of her delivery if she is pregnant by her ex- if the conjugal residence does not match her social standing husband, may be punished with one to six months’ impris- or is unsafe for her family or property.619 The wife manages onment and a fine.637 A widow faces the same penalty if she household affairs and purchases necessities for the family with remarries within 301 days of the death of her husband, or her husband’s income,620 and is entitled to support during the before having delivered if she was pregnant at the time of marriage.621 The wife may engage in a profession or business her husband’s death.638 Since December 2004, a bill has been with the consent of her husband, but only if such profession or PHILIPPINES PAGE 149

pending in the House of Representatives bill that seeks to In cases of ila, the wife may obtain a judicial decree of abolish this penalty and allow “divorced” or widowed women divorce after due notice and a hearing where the husband to remarry within 40 days of the date of the dissolution or has kept a vow to abstain from sexual relations with his wife annulment, or the husband’s death.639 for a period of at least four months.653 The Family Code also provides for legal separation, a peti- Divorce by zihar, or injurious assimilation, occurs when tion for which may be ﬁled on a number of grounds, includ- the husband likens his wife to his mother, sister, or any rela- ing the following: tive within the third degree.654 A husband who makes such

■ repeated physical violence or gross abuse against the statements must complete the prescribed expiation, or acts petitioner, or against a common child or a child of of redemption,655 before resuming sexual relations.656 The the petitioner; wife may ask the court to order her husband to perform

■ attempts to connive the petitioner, a common child, these redeeming acts; alternatively, she may petition for a or a child of the petitioner to engage in prostitution; divorce if the husband refuses to comply, without prejudice

■ conviction of the respondent to more than six years’ to her right to other appropriate remedies.657 imprisonment, even if pardoned; Divorce by li’an may be granted if a husband accuses his

■ drug addiction or habitual alcoholism of the respon- wife of adultery in a court and provides witnesses to the dent; adultery, or swears to the truth of his testimony. 658

■ lesbianism or homosexuality of the respondent; In divorce by khul, a woman may petition for a judicial

■ subsequent contract by the respondent in a bigamous decree of divorce after having offered to return or renounce marriage, whether in the Philippines or abroad; her dower, or pay any other lawful consideration for her

■ sexual inﬁdelity or perversion; release from the marriage bond.659

■ attempt by the respondent against the life of the peti- Divorce by tafwid is possible if a wife invokes the right to tioner; or divorce delegated to her by her husband at the time of the

■ unjust abandonment for more than one year.640 marriage ceremony or thereafter.660 The wife’s delegated While legal separation entitles the couple to live separately right is equally as effective as her husband’s right.661 from each other, the marital bond is not severed and thus In divorce by faskh, a wife may petition the court for neither party is permitted to remarry.641 a decree of divorce on certain speciﬁc grounds, including During proceedings for legal separation or annulment, the following:

the Family Code provides that spouses and their children are ■ the husband’s neglect or failure to provide support supported by the properties of the “absolute community” (all for the family for at least six consecutive months;

common property between both spouses)642 or the conjugal ■ the husband’s impotence; or

partnership.643 After a final judgment granting the petition for ■ the husband’s insanity or affliction with an incurable legal separation or annulment of marriage, the obligation of disease that would make continuance of the mar- mutual support between the spouses ceases.644 The court may riage injurious to the family.662 order the guilty spouse in the proceedings for legal separation In addition, the court may grant the wife a decree of to support the innocent spouse, specifying the terms of such an faskh on the ground of unusual cruelty by the husband, order.645 The amount of support may be adjusted on the basis which is defined as the following:

of the needs of the recipient and the resources of the payer.646 ■ the wife is the habitual object of her husband’s men- Divorce laws governing Muslims tal or physical cruelty;

Under the Code of Muslim Personal Laws, Muslims mar- ■ the husband associates with persons of ill repute, ried under its provisions may divorce “only after the exhaus- leads an infamous life, or attempts to force his wife tion of all possible means of reconciliation between the to live an immoral life;

spouses.”647 A Muslim divorce may be performed in different ■ the husband compels his wife to dispose of her ways, depending upon the circumstances.648 exclusive property or prevents her from exercising A divorce by talaq may be effectuated with a husband’s single her legal rights over it;

verbal or written repudiation of his wife.649 The husband has ■ the husband obstructs his wife’s observance of her the right to revoke his repudiation within the prescribed waiting religious practices; or

period (idda)650 by resuming cohabitation with his wife, provided ■ the husband does not treat his wife “justly and equi- that such repudiation occurs only once or twice.651 Otherwise, tably as enjoined by Islamic law.”663 the repudiation becomes irrevocable (talaq bain sugra).652 As soon as the divorce is effectuated, the marriage bond PAGE 150 WOMEN OF THE WORLD:

is severed and the spouses may contract another marriage shall be given the care and custody of children under the age in accordance with the Code of Muslim Personal Laws.664 of seven in the event of the parents’ divorce.686 Prepubes- A divorced or widowed woman may generally not remarry cent children aged seven and older may choose which parent unless she has observed a prescribed waiting period of idda, they wish to reside with.687 Unmarried daughters who have counted from the date of divorce or the husband’s death, reached the age of puberty at the time of the divorce remain as the case may be.665 If a woman is pregnant at the time with the father, while unmarried sons who have reached of divorce or her husband’s death, she can remarry only puberty remain with the mother.688 after delivery of the child.666 The code ﬁnes any widow or E. ECONOMIC AND SOCIAL RIGHTS divorced woman married under Muslim law who remarries Ownership of property and inheritance before the expiration of the prescribed idda with up to 500 The constitution provides that “no person shall be deprived pesos (USD 9).667 of … property without due process of law.”689 It enjoins the Under the code, divorcing Muslim women have a right to government to give highest priority to enacting legislation support throughout the idda668 and until delivery if the wife is for the protection and enhancement of people’s rights, and to pregnant at the time of the separation.669 Any divorced nurs- remove social, economic, and cultural imbalances by equita- ing mother who continues to breast-feed her child is entitled bly distributing wealth and political power for the common to receive support until the time of weaning.670 The husband good.690 To that end, the constitution requires the state to remains obligated to support his wife even if his resources are regulate the acquisition, ownership, use, and disposal of prop- so reduced that he cannot support her without neglecting his erty and income derived from property.691 own needs and those of his family.671 Furthermore, the wife is The Indigenous Peoples Rights Act of 1997 requires the entitled to her entire dower from her husband if the divorce was state to protect the rights of indigenous cultural communi- effectuated after the marriage was consummated, or to one-half ties and peoples to their ancestral domains, and to recognize of her dower if the divorce occurred before consummation.672 their customary laws in matters of property rights and issues Parental rights of ownership and the extent of ancestral domain.692 It further Parental authority is shared between spouses over their provides that indigenous peoples are entitled to special mea- common children, but in cases of disagreement, the husband’s sures to improve their economic and social conditions. The decision prevails, unless there is a judicial order to the con- act makes special mention of indigenous women, youth, and trary.673 A similar provision exists in the Code of Muslim children as needing particular attention.693 Personal Laws.674 In case the parents are divorced, parental The property rights of married Filipinos are governed authority is exercised by the parent who is designated by the in the following order: by prenuptial agreements executed court.675 If the parents are legally separated and the separation before marriage, by provisions in the Family Code of the is granted because of an act of bad faith by one spouse, the Philippines, and by local custom.694 In the absence of a pre- “innocent” spouse receives custody of the minor children.676 nuptial agreement, or in cases where the arrangement agreed Several statutes mandate that children under age seven may upon is void, the principle of “absolute community property” not be separated from their mother in the absence of “com- applies,695 and both spouses jointly administer and share own- pelling reasons”;677 the Supreme Court has held that such ership over all property that was owned by the spouses at reasons include the mother being guilty of or responsible for the time of marriage or acquired thereafter (the “community the following: property”).696 ■ neglect, abandonment,678 or maltreatment of the Property rights in marriages contracted prior to the enact- child;679 ment of the Family Code (i.e., before August 4, 1988) are gov- ■ unemployment or immorality;680 erned under the system of “conjugal property of gains.”697 ■ habitual drunkenness681 or drug addiction;682 Pursuant to this earlier regime, each spouse has exclusive ■ insanity; or ownership of certain types of property, including property ■ afﬂiction with a communicable disease.683 that is: Generally, courts give paramount consideration to the wel- ■ brought to the marriage as his or her own; fare and best interests of the child.684 Pursuant to the Anti- ■ acquired during the marriage by gratuitous title; Violence Against Women and Their Children Act of 2004, a ■ acquired by barter or exchanged with property woman who is a victim of domestic violence is entitled to the belonging to only one of the spouses; or custody and support of her children.685 ■ purchased with the exclusive money The Code of Muslim Personal Laws states that mothers PHILIPPINES PAGE 151

of the wife or the husband.698 the share of daughters.715 Upon divorce, the spouses lose their Conjugal partnership property includes property acquired mutual rights of inheritance.716 during the marriage that was paid for by the married couple’s Rights to agricultural land common funds; property that was obtained from the labor or The Comprehensive Agrarian Reform Law of 1988 stipu- profession of either or both spouses; the gains received from lates that qualified rural women have equal rights as men to the couple’s common property; and the net gains from the land ownership, shares in agricultural production, and repre- exclusive property of each spouse.699 sentation in advisory and decision-making bodies.717 In cases of disagreement over the administration or enjoy- Labor and employment ment of community or conjugal property, the husband’s deci- The number of women employed in major industries has sion prevails.700 However, the wife may contest the decision steadily increased recently, rising to an estimated 11.8 million in court within five years from the date of the contract imple- women in 2001718 from 9.13 million women in 1995.719 The menting the husband’s decision.701 vast majority of women are employed in three major indus- The Family Code also provides for property rights in try groups: shop and market sales (including wholesale, retail, unions outside of marriage.702 A woman and man who have and repairs); agriculture (including hunting and forestry); the legal capacity to marry and who live exclusively with each and manufacturing.720 Approximately 1.8 million women other as husband and wife are equal co-owners of the wag- (compared with 1.3 million men) are employed as officials es, salaries, and property they acquire through their work or of government and special interest organizations, corporate industry.703 Unless there is proof otherwise, property acquired executives, managers, managing proprietors, and supervisors; during their cohabitation is presumed to be obtained through an additional estimated 1.4 million women (compared with their joint efforts, and is owned by them in equal shares.704 1.2 million men) are service workers and shop and market The efforts of one party in the care and maintenance of the sales workers.721 The Philippines is the second largest labor family is regarded as equal contribution to the acquisition of exporter in the world.722 Government statistics indicate that property.705 In unions between a man and a woman who as of late 2003, about 3.4 million Filipinos were abroad solely lack the legal capacity to marry and do not cohabit exclusively for employment reasons.723 About 75% of all migrant workers with each other, the parties have common ownership only are women,724 comprising 90% of all migrant workers in the over property acquired by both parties, in proportion to their service sector and 85% of all migrants in the professional and respective contribution to the acquisition of such property.706 technical sectors.725 In the absence of proof to the contrary, their contributions The constitution mandates the state to “afford full protec- and corresponding shares are presumed to be equal.707 tion of labor, local and overseas, organized and unorganized, Under the Family Code, a minor can own property, but and promote full employment and equality of employment his or her parents jointly exercise legal guardianship over opportunities for all.”726 It guarantees the rights of all workers the property until the minor reaches the age of majority to “self-organization, collective bargaining and negotiations, (age 18).708 and peaceful concerted activities, including the right to strike In matters of inheritance, the Civil Code provides that in accordance with law.”727 Workers are further entitled to female and male heirs inherit equally.709 “security of tenure, humane conditions of work, and a living Laws governing Muslims wage.”728 The constitution also enjoins the state to protect The Code of Muslim Personal Laws provides for exclu- working women by “providing safe and healthful working sive property ownership in the absence of any prenuptial conditions, taking into account their maternal functions, and agreement stipulating the contrary.710 Under the code, the such facilities and opportunities that will enhance their wel- wife retains ownership and administration of all properties fare and enable them to realize their full potential in the ser- brought by her to the marriage,711 and may own, possess, vice of the nation.”729 administer, enjoy, and dispose of her exclusive estate without The Labor Code contains provisions prohibiting discrimi- the consent of her husband.712 However, the husband’s con- nation against female employees based on their sex, marital sent is required in order for the wife to acquire property by status, or pregnancy.730 Prohibited acts of sex-based dis- gratuitous title, “except from her relatives who are within the crimination include providing lesser pay or benefits to female prohibited degrees in marriage.”713 employees than male employees for work of equal value,731 In matters of inheritance, the code provides that a surviv- and favoring male employees over female employees solely on ing husband has a greater share in the inheritance estate than account of their sex in promotions, training opportunities, and does a surviving wife,714 and that sons are entitled to double study and scholarship grants.732 The code further prohibits PAGE 152 WOMEN OF THE WORLD:

employers from expressly or tacitly stipulating marital status (1992) states that women and men, regardless of marital status, (either single or married) as a condition for hiring or contin- have equal capacity to enter into contracts.748 As such, wom- ued employment, and from dismissing female employees or en can obtain loans and execute security and credit arrange- discriminating against them in any way solely on account of ments under the same conditions as men, and they have equal their marital733 or pregnancy status.734 access to programs providing agricultural credit, loans, and In the 1997 case Philippine Telegraph and Telephone Corp. v. nonmaterial resources.749 The law also mandates government National Labor Relations Commission, the Supreme Court held financing institutions to provide loans to women who are, or that an employer’s policy of disqualifying married women wish to be, engaged in micro and cottage businesses.750 Any workers from employment “runs afoul of the test of, and the Filipino woman aged 18 and older, regardless of marital status, right against, discrimination, afforded all women workers by is eligible to apply for a loan, although existing businesses with our labor laws and by no less than the Constitution.”735 The assets above a specified amount receive priority.751 To ensure court further noted that such policy “assaults good morals and the availability of these loans, government financing institu- public policy, tending as it does to deprive a woman of the free- tions are required to set aside 5% of their loan portfolio for the dom to choose her status, a privilege that by all accounts inheres implementation of this law.752 in the individual as an intangible and inalienable right.”736 There are some obstacles to women’s legal right to access As a means to protect women, labor laws generally pro- credit. In practice, banks usually require the husband’s consent hibit certain types of work, such as night work for women.737 for large loans requiring property as collateral.753 Women are Exceptions to this rule include work done in response to also sometimes denied credit because they do not have nego- emergency situations, urgent work required to avoid serious tiable property, as titles to land are usually in men’s names.754 loss to the employer, work in the health and welfare sectors, Education and work in managerial or technical positions.738 Although literacy rates among Filipinos aged ten and older The Social Security Act of 1997 and the Administrative do not vary by gender (i.e., 93.7% among females and 94.0% Code of 1987 provide certain benefits and services for work- among males),755 enrollment in elementary schools is slight- ing pregnant women and mothers.739 In the private sector, ly higher among boys (42.3%) than among girls (39.2%).756 employees are entitled to 60 days of fully paid maternity leave The literacy rate is comparatively lower in the Autonomous for their first four deliveries.740 In cases of cesarean deliv- Region of Muslim Mindanao (e.g., 71.4% among females and ery, employees may receive 78 days of fully paid maternity 75.6% among males).757 Gender differentials are clear in the leave.741 In the government sector, female employees who choice of higher education courses, with a disproportionately have rendered an aggregate of at least two years of service high number of female students enrolled in education and are entitled to 60 days of maternity leave, irrespective of the teacher training courses; home economics; service trades; number of their deliveries.742 These rules were amended in medicine and allied sciences; and the trade, craft, and indus- 2002 to afford all female employees, irrespective of marital trial disciplines.758 Male students usually enroll in courses on status, maternity leave benefits.743 The Paternity Leave Act engineering, technology, religion, and theology.759 of 1996 provides that legally married male employees in the In an article of the constitution devoted specifically to private and government sectors may receive seven days of paid “Education, Science and Technology, Arts, Culture, and paternity leave for each of their wife’s first four deliveries.744 Sports,” the state is mandated to “protect and promote the The Labor Code requires employers to establish appropri- right of all citizens to quality education at all levels of educa- ate facilities for women in the workplace, such as separate tion and … take appropriate steps to make such education toilets and dressing rooms, and nurseries.745 The code fur- accessible to all.”760 It further requires the state to “[e]stablish ther requires employers who are required by law to maintain and maintain a system of free public education in the elemen- a clinic to provide free family planning services and coun- tary and high school levels,” and makes elementary education seling to their employees, including counseling regarding compulsory for all children of school age.761 In addition, the the use of contraceptives and IUDs, and to offer “incentive state is required to take the following measures:

bonus schemes to encourage family planning among female ■ establish and maintain a system of scholarship grants, workers….”746 The law also mandates that day care centers student loan programs, subsidies, and other incentives be established in every barangay to provide care for working to be made available to students in private and public women’s children up to age six.747 schools, especially underprivileged students;

Access to credit ■ encourage nonformal, and indigenous learning sys- The Women in Development and Nation Building Act tems, as well as self-learning, independent, and out- PHILIPPINES PAGE 153

into the following four major components:773 of-school study programs; and ■ Family Life and Responsible Parenthood, which ■ provide adults, the disabled, and out-of-school youth encourages delayed marriage, and discusses respon- with training in civics, vocational training, and other sible sexual behavior, the need to plan family size skills.762 rationally and responsibly, and the different family The 1988 Free Public Secondary Education Act further planning methods and their advantages and disadvan- mandates the government to provide free public secondary tages;774 education to all qualified Filipino citizens and to promote ■ Gender and Development, which discusses issues quality education at all levels.763 The Education Act of 1982 such as equal rights for women and men, changing governs formal and nonformal education, and establishes the gender roles, and women’s empowerment as a tool for rights and duties of parents, students, and schools.764 That act self-enhancement and nation building;775 also reaffirms the government’s obligation to contribute to ■ Population and Reproductive Health, which pro- the financial support of educational programs and to adopt motes reproductive rights and discusses the impor- measures to broaden access to education through financial tance of reproductive health care and threats to assistance and other forms of incentives.765 reproductive health;776 and Women are further provided with free technical training ■ Population, Resources, Environment and Sustainable in the operation of a micro or cottage business under the Development, which discusses the principles of sus- provisions of Republic Act No. 7882, titled An Act Providing tainable development and the relationship between Assistance to Women Engaging in Micro and Cottage Busi- quality of life and sustainable development.777 ness Enterprises, and for Other Purposes, which was approved The promotion of sex education is also supported by the by the president of the Philippines on February 20, 1995.766 PPMP, which specifically calls for the Department of Educa- Since the 1960s, the government has undertaken measures tion to integrate reproductive health concepts and concerns to accelerate the educational advancement of Muslim Filipi- into PopEd.778 nos, who, along with indigenous groups, face particular obsta- The government has also introduced nonformal edu- cles to higher education.767 These measures include offering cation programs that address the reproductive health of scholarships, funds, grants, and other privileges to Muslim adolescents. Population Awareness and Sex Education is a Filipino students for elementary and higher education, and population and sexuality education program administered creating the Commission on National Integration to institute by the Department of Social Welfare that specifically targets and widen programs that improve the welfare of Muslims.768 out-of-school youth.779 The Indigenous Peoples Rights Act guarantees the right of indigenous cultural communities and indigenous peoples F. PROTECTIONS AGAINST PHYSICAL AND to education as part of their right to “special measures for the SEXUAL VIOLENCE immediate, effective and continuing improvement of their Rape economic and social conditions.”769 The act calls for particu- Under the Anti-Rape Law of 1997, which amended the lar attention to be given to the rights and needs of indigenous Revised Penal Code, rape is committed when a man has “car- women, elderly, youth, children, and persons with disabilities. nal knowledge” of a woman under any of the following cir- Indigenous communities may exercise their right to educa- cumstances: tion within the context of their cultures, customs, traditions, ■ through force, threat, or intimidation; interests, and beliefs.770 ■ when the woman is deprived of reason or is other- Sex education wise unconscious; In 1972, the Department of Education, then referred to as ■ through fraud or grave abuse of authority; the Department of Education, Culture and Sports introduced ■ when the woman is “demented”; or PopEd in all public and private elementary and secondary ■ when the woman is under the age of 12.780 schools.771 In 1996, the program was revitalized to cover a The Supreme Court has further clarified that minimal broad range of issues, including reproductive health and vaginal contact is sufficient to constitute carnal knowledge human sexuality. Population education is not taught as a sin- under the crime of rape.781 gle subject, but is integrated into the curriculum of other sub- Rape is also committed when any person, under any of the jects.772 Currently, private elementary and secondary schools aforementioned circumstances, “insert[s] his penis into anoth- are no longer obligated to teach population education. er person’s mouth or anal orifice, or any instrument or object, The current population education curriculum is divided into the genital or anal orifice of another person.”782 Prior to PAGE 154 WOMEN OF THE WORLD:

the enactment of the Anti-Rape Law, rape was considered a Proceeding Against the Father-Rapists or Tolerate Its Com- crime against chastity and its definition was limited.783 mission” has been pending with the Committee on Justice Marital rape is considered a crime, but the wife’s forgive- since August 2001.793 ness invalidates the criminal action or penalty; however, if the Domestic violence marriage is void ab initio, the crime or penalty still stands.784 The Philippines has no specific national law on domestic The rapist may be absolved of criminal action or penalty if the violence. However, the Family Courts Act of 1997, which victim enters into a legally valid marriage with him.785 established family courts, defines domestic violence against Rape is penalized with either imprisonment of up to 30 women as “acts of gender based violence that result, or are years or death.786 The death penalty is imposed in the follow- likely to result in physical, sexual or psychological harm or ing circumstances: suffering to women; and other forms of physical abuse such

■ the rape results in homicide;787 as battering or threats and coercion which violate a woman’s

■ the victim is under the custody of the police, military personhood, integrity and freedom of movement.”794 When authorities, or any law enforcement or penal institu- committed against children, domestic violence includes “the tion; commission of all forms of abuse, neglect, cruelty, exploitation,

■ the rapist knows that he is infected with HIV or any violence, and discrimination and all other conditions preju- other STI and transmits the virus or infection to the dicial to their development.”795 Family courts have exclusive victim; original jurisdiction over cases of domestic violence796 and the

■ the rapist is a member of the Armed Forces of the authority to issue restraining orders against the abuser in cases Philippines or its paramilitary units, the Philippine of violence among immediate family members living in the National Police, or any law enforcement agency or same domicile or household.797 penal institution taking advantage of his position to The Anti-Violence Against Women and Their Children facilitate the rape; Act of 2004 penalizes a broad range of acts of violence against

■ the rapist knew of the religious vocation, pregnancy, women and their children committed by current and for- mental disorder, or physical handicap of the victim at mer spouses or intimate partners.798 The act reafﬁrms the the time the rape was committed; deﬁnition of domestic violence in the Family Courts Act of

■ the victim is below seven years of age; 1997, and recognizes the additional conditions of economic

■ the victim suffers permanent physical mutilation or abuse (acts that make or attempt to make a woman ﬁnancially disability from the rape;788 or dependent on the perpetrator), and harassment.799 Acts of

■ the victim is below the age of 18 and the rapist is a violence against women and their children include, inter alia, parent, ascendant, stepparent, guardian, relative by the following:

consanguinity or afﬁnity within the third degree, ■ causing, threatening, or attempting to cause physical or the common-law spouse of the parent of the vic- harm to the woman or her child;

tim.789 ■ placing the woman or her child in fear of imminent The Revised Penal Code also provides criminal sanctions physical harm;

against acts of lasciviousness, which involve sexual assaults ■ compelling or attempting to compel the woman or other than rape that are committed by any person against her child to engage in conduct they have a right to another person of either sex under the same circumstances as desist from, or compelling them to desist from con- rape. Such acts are punishable with terms of imprisonment duct they have a right to engage in;

from six months and one day to six years.790 ■ restricting or attempting to restrict the freedom of Punishments for rape are also prescribed by the Anti-Vio- movement or conduct of the woman or her child by lence Against Women and Their Children Act of 2004.791 The force or threat of force, such as with physical or other penalties for committing rape against a wife, former wife, or harm or threat of such harm or intimidation (includ- women with whom the perpetrator shares or shared a sexual ing depriving or threatening to deprive the woman or relationship or common child are ﬁnes of 100,000–300,000 her child of custodial rights, access to family, ﬁnancial pesos (USD 1,800–5,399), mandatory psychological or psy- support legally due, or legal rights), or preventing the chiatric treatment, and imprisonment or death.792 woman from engaging in any legitimate profession In addition, a House of Representatives bill entitled “An or activity, or depriving access to her separate or con- Act Strengthening Further the Right of Daughters against jugal money or properties;

Incestuous Rape by Penalizing Mothers Who Refrain From ■ inﬂicting or threatening to inﬂict physical harm on PHILIPPINES PAGE 155

oneself for the purpose of controlling the woman’s duct may be cited as a ground for legal separation.808 actions or decisions; Sexual harassment

■ causing or attempting to cause the woman or her The Anti-Sexual Harassment Act of 1995 prohibits all forms child to engage in any sexual activity that does not of sexual harassment in employment, education, and train- constitute rape; ing environments;809 sexual harassment is committed when

■ engaging in purposeful, knowing or reckless con- a person in a position of power, influence, or moral author- duct, personally or through another, that alarms or ity over another person in such an environment demands, causes substantial emotional or psychological dis- requests, or requires any sexual favor from the other, regardless tress to the woman or her child (including stalking, of whether that favor is accepted.810 Convicted violators are unlawful trespass, destruction of property, inflicting penalized with a maximum of six months’ imprisonment, a harm on pets, and any form of harassment or vio- fine, or both, depending on the discretion of the court;811 violence); or lators may face civil action for damages and other affirmative

■ causing mental or emotional anguish, public ridicule, relief.812 An employer or the head of an academic or training or humiliation to the woman or her child.800 institution who fails to take immediate action upon being The act provides detailed mechanisms for effecting pro- informed by the victim of the sexual harassment may be held tection orders and other necessary relief for female victims of liable for damages.813 violence.801 In addition, victims who are found by the courts In 2001, the Civil Service Commission issued the Admin- to be suffering from “battered woman syndrome” (defined istrative Disciplinary Rules on Sexual Harassment Cases, in the act as a “scientifically defined pattern of psychological which outline the definition of such cases and the procedures and behavioral symptoms found in women living in battering for investigating and resolving them in the public sector.814 relationships as a result of cumulative abuse”) do not incur The rules define the administrative offense of sexual harass- any criminal and civil liability for acts committed in response ment as “any unwelcome sexual advance, request or demand to the violence perpetrated on them, even if formal elements for a sexual favor, or other verbal or physical behavior of a of self-defense, as prescribed by the Revised Penal Code, are sexual nature, committed by a government employee or offi- absent.802 A victim suffering from battered woman syndrome cial in a work-related, training or education environment.”815 is also not disqualified from having custody of her children, Under the rules, a head of office who fails to investigate a and under no circumstance may the custody of children be properly filed complaint of sexual harassment within 15 days given to the perpetrator.803 may be charged with neglect of duty.816 Penalties for persons The act also provides female and underage victims of vio- found guilty of sexual harassment range from reprimand to lence the rights to be treated with respect and dignity, receive dismissal, depending on the gravity of the offense.817 legal assistance from the Department of Justice or any pub- Although there have been no Supreme Court cases result- lic legal assistance office, obtain support services, have access ing from the Anti-Sexual Harassment Act, the court has to all legal remedies, be given support as provided for under decided labor cases involving sexual harassment.818 Further- the Family Code, and be informed of the rights and services more, although some cases have been filed in the lower courts available to them, including their right to apply for a protec- under the act, most of these have not resulted in a finding of tion order.804 Moreover, the act mandates the Department a violation.819 of Social Welfare and Development, and LGUs to provide Commercial sex work and sex-trafficking victims with temporary shelter, counseling, psychosocial ser- Prostitution is illegal in the Philippines. Imprisonment of vices, recovery and rehabilitation programs, and livelihood 8–12 years may be imposed upon any person who engages in assistance; the act further specifies that the Department of the business of or profits by prostitution, or who enlists the Health shall provide medical assistance in these cases.805 The services of any other for the purpose of prostitution.820 Any Rape Victim Assistance and Protection Act of 1998 established person who prostitutes his or her current or former wives, rape crisis centers in every province and city.806 intimate partners, or children violates the Anti-Violence In addition to the remedies prescribed under the Family Against Women and Their Children Act of 2004, and may be Courts Act of 1997 and the Anti-Violence Against Women and punished by fines, imprisonment, or death.821 Their Children Act of 2004, female victims may invoke provi- Several pieces of proposed legislation concerning prostitu- sions of the Revised Penal Code in cases of domestic violence.807 tion are pending in the Philippine Congress, including, among Additional recourse is available under the Family Code, which others, a resolution on Laws and Regulations Governing the provides that repeated physical violence or grossly abusive con- Fight against Prostitution in All Forms, which was approved PAGE 156 WOMEN OF THE WORLD:

by the House of Representatives in May 2002 and referred to The act provides that sexual intercourse with a child below the Committee on Rules;822 and the Anti-Prostitution Act, 12 years of age constitutes the crime of rape, and carries a which is currently before the House of Representatives, and penalty of death or imprisonment of 20–40 years.839 Other has been pending in the Committee on the Revision of Laws forms of sexual conduct with a child below the age of 12 are since October 2004.823 Other House of Representatives bills prosecuted under the crime of acts of lasciviousness, and are addressing the definition of the crime of prostitution and pen- punishable by imprisonment of 15–18 years.840 alties were also referred to the committee in 2004.824 In addition, the Revised Penal Code criminalizes sexual Despite the illegality of prostitution in the Philippines, sex relations with girls over age 12 and under 18.841 More spe- work nonetheless reportedly takes place in entertainment estab- cifically, it prescribes punishments for “qualified seduction,” lishments as well as in designated neighborhoods.825 Women which is defined as a public authority figure or any person working as prostitutes in entertainment establishments are entrusted with the custody or the education of the victim required to have a current “clean” health card from local health inducing a female virgin between 12 and 18 years of age authorities to demonstrate that they are free of STIs and dis- into having sexual intercourse.842 The crime is punishable eases.826 The lack of updated health cards among employees by imprisonment of 6–50 months,843 or by imprisonment of constitutes grounds for the closure of such establishments.827 6–10 years if the victim is below 12 years of age.844 The code The Anti-Trafficking in Persons Act of 2003 criminalizes defines “simple seduction” as sexual intercourse obtained by specific acts such as the “recruitment, transportation, trans- means of deceit with a “single woman or a widow of good fer or harboring, or receipt of persons,” for the purpose of reputation” aged 12–18,845 which is punishable with a prison exploitation and the promotion of such activities.828 The act term of one to six months.846 prohibits all types of domestic and international trafficking for The Special Protection of Children against Child Abuse, the purpose of exploitation, including trafficking by “threat or Exploitation and Discrimination Act (1992) specifically use of force, … coercion, abduction, fraud, deception, abuse addresses child prostitution, and prescribes prison terms of of power or of position, taking advantage of the vulnerability 15–40 years for individuals who engage in, promote, facili- of the person, … [and] the giving or receiving of payments tate, or induce child prostitution;847 have sexual intercourse or or benefits to achieve the consent of a person having control other sexual conduct with a child exploited in prostitution or over another person.”829 Exploitation is defined to include subjected to other sexual abuse;848 or derive profits or advan- forced prostitution, sexual slavery, and other forms of sexual tages from child prostitution.849 Attempted involvement exploitation.830 The act specifically prohibits any type of traf- in child prostitution, whether as a procurer or a client,850 is ficking in children or the disabled for the purpose of exploita- subject to imprisonment of 6–12 years.851 The act prescribes tion.831 longer terms of imprisonment if the child prostitute is under Persons convicted of trafficking are subject to imprison- 12 years of age.852 ment of up to 20 years and a fine of one to two million pesos Child trafficking is specifically prohibited by the Special (USD 17,995–35,991).832 Persons found guilty of promoting Protection of Children against Child Abuse, Exploitation and trafficking may be sentenced to 15 years’ imprisonment and Discrimination Act. Any person who engages in “trading and a fine of 500,000–1,000,000 pesos (USD 8,998–17,995).833 dealing with children, including … buying and selling of a Trafficked persons are regarded as victims and are not penal- child for money, or for any other consideration, or barter” ized,834 but persons who buy or engage the services of traf- may be punished by imprisonment of 12–30 years, with the ficked persons for prostitution are penalized with community maximum penalty imposed if the victim is below 12 years service, fines, or imprisonment.835 old.853 Attempted child trafficking is also punishable under The act also created the Inter-agency Council against Traf- the act by six months to six years of imprisonment.854 Acts of ficking,836 and it further directs various government agencies attempted child trafficking include, inter alia, sending a child to establish and implement preventive, protective, and reha- alone to a foreign country without valid reason or parental bilitative programs to provide specific mandatory services to consent;855 the alteration of birth record data by medical per- trafficked persons.837 sonnel or civil officials for the purpose of aiding child traffick- Sexual offenses against minors ing;856 and the recruiting of women, couples, or low-income The Special Protection of Children against Child Abuse, families to bear and surrender their child for the purpose of Exploitation and Discrimination Act (1992) prohibits all forms child trafficking.857 of child-targeted abuse (i.e., physical, psychological, and sexual), neglect, cruelty, exploitation, and discrimination.838 PHILIPPINES PAGE 157

ENDNOTES 36. The Non-Aligned Movement, Member States, http://www.nam.gov.za/background/members.htm (last visited May 4, 2005). 37. CIA World Factbook, supra note 1; Phil. Const. Members of the Constitutional 1. See Central Intelligence Agency (CIA), U.S. Government, Philippines, in The commission were appointed by then President Aquino who stated that the Philippines World Factbook (2005), http://www.cia.gov/cia/publications/factbook/geos/rp.html could not afford the time or expense of an election. Delegates represented a range of (last visited May 4, 2005) [hereinafter CIA World Factbook]. political stances, from leftists to nationalists but the majority were moderate conserva- 2.U.S. Department of State, Background Notes: Philippines (2004), http://www. tives. There were 30 lawyers including two former Supreme Court justices. Represent- state.gov/r/pa/ei/bgn/2794.htm (last visited May 4, 2005) [hereinafter U.S. Department ing the interests of the Catholic Church were a nun, a priest, and a bishop. Five seats of State Background Notes]. were members of Marcos’s New Society Movement including former Blas Ople with 3. Id. a total of 48. Library of Congress Country Studies, Philippines, supra note 4, ch. 4, 4. Id.; Federal Research Division, Library of Congress, Philippines: A Country Constitutional Framework. Study, ch. 1, Spanish-American War and Philippine Resistance, Outbreak of War 1898 38. Phil. Const. art. II, § 1. (Ronald E. Dolan ed., 1991), http://lcweb2.loc.gov/frd/cs/phtoc.html (last visited May 4, 39. U.S. Dep’t of State Background Notes, supra note 2. 2005) [hereinafter Library of Congress Country Studies, Philippines]. 40. Phil. Const. art. VII, § 1. 5. U.S. Dep’t of State Background Notes, supra note 2. The Malolos Constitution 41. Id. art. VII, § 18. was subsequently promulgated on January 21, 1899 and inaugurated Aguinaldo as its 42. The Commission on Appointments consists of the Senate President, as ex officio president two days later. Library of Congress Country Studies, Philippines, supra Chair, twelve Senators, and twelve Members of the House of Representatives, elected note 4, ch. 1, The Malolos Constitution and the Treaty of Paris. by each House on the basis of proportional representation from the political parties and 6. U.S. Dep’t of State Background Notes, supra note 2. A war of resistance against U.S. party-list representatives. Id. art. VI, § 18. rule started the Philippine-American War in 1899 led by Revolutionary President Agui- 43. Id. art. VII, § 16. naldo until it gradually died out upon his capture and oath of allegiance to the United 44. Id. art. VII, § 17. States in 1901. Id. The Treaty of Paris included the cession of the Philippines, Guam, and 45. Id. art. VII, § 4. To qualify as a candidate for President and Vice-President, a person Puerto Rico to the United States while Cuba was granted independence. Library of must be a citizen of the Philippines, at least forty years of age, and a resident of the Phil- Congress Country Studies, Philippines, supra note 4, ch. 1, The Malolos Constitution ippines for at least ten years immediately preceding such election. Id. art. VII, §§ 2–3. and the Treaty of Paris. 46. Id. art. VII, § 1. See id. §§ 16-17. 7. See U.S. Dep’t of State Background Notes, supra note 2. 47. Id. art. VII, § 4. 8. Id. The Philippines gained its independence under the Tydings-McDuffie Act. Id. 48. Id. art. VII, § 3. 9. Id. 49. Id. art. VII, § 8. 10. Id. 50. Id. art. XI, § 2. 11. Id. 51. Id. art. XI, § 3(6). 12. Id. Marcos used a provision of the 1935 constitution to declare martial law. Id. He 52. Id. art. VI, § 1. shut down Congress and most newspapers, jailed his political opponents, assumed dicta- 53. Id. torial powers, and ruled by presidential decree. Library of Congress Country Studies, 54. Id. art. VI, §§ 2, 4. To qualify as a candidate for Senator, a person must be a Philippine Philippines, supra note 4, ch. 1, Proclamation 1081 and Martial Law. citizen, at least thirty-five years old, and a resident of the Philippines for not less than two 13. See U.S. Dep’t of State Background Notes, supra note 2. years immediately preceding the day of the election. Id. art. VI, § 3. 14. Id. Aquino was shot in the head and killed as he was escorted off an airplane at 55. Id. art. XVIII, § 2. Thirteen senators were elected in May 2001. Election watch- Manila International Airport by the Aviation Security Command. Library of Con- Philippines, CNN World, http://www.cnn.com/WORLD/election.watch/asiapcf/ gress Country Studies, Philippines, supra note 4, ch. 1, From Aquino’s Assassination to philippines3.html (last visited May 4, 2005). People’s Power. 56. Phil. Const., art. VI, § 5(1). 15. EDSA stands for “Epifanio de los Santos Avenue,” a ring road around Manila that was 57. Id. art. VI, § 5(2); Party-List System Act, Republic Act No. 7941, §§ 2, 11 (1995). the site of the EDSA Revolution. Library of Congress Country Studies, Philippines, 58. Phil. Const., art. VI, § 7. To qualify as a candidate for the House of Representa- supra note 4, Glossary. tives, a person must be a Philippine citizen, at least 25 years old, and a registered voter in 16. CIA World Factbook, supra note 1. the district in which he or she shall be elected for a period of at least a year immediately 17. U.S. Dep’t of State Background Notes, supra note 2. preceding the day of the election. Id. art. VI, § 6. This latter requirement does not apply 18. See id. to the 20% of those elected to the House of Representatives through party-list represen- 19. Id. tation. Id. 20. Id. 59. See id. art. VI, § 24; Philippines Senate, Legislative process, Preliminary Proce- 21. Id. dures, http://www.senate.gov.ph/about/legpro.htm (last visited May 4, 2005). 22. Id. 60. Phil. Const., art. VI, § 24. 23. Id. 61. Id. art. VI, §§ 26(2), 27(1). 24. CIA World Factbook, supra note 1. 62. Id. art. VI, § 27(1). 25. Muslim insurgency groups include the Moro Islamic Liberation Front and the Abu 63. Id. Sayyaf Group. Communist groups include the New People’s Army, which is the military 64. Id. arm of the Communist Party of the Philippines. See Wikipedia, The Free Encyclo- 65. Id. art. VI, § 32. pedia, Moro Islamic Liberation Front, http://en2.wikipedia.org/wiki/Moro (last 66. Id. art. XVII, § 1(1). visited May 4, 2005); see also Who are the Abu Sayyaf?, BBC News, Dec. 30, 2000, 67. Id. art. XVII, § 1(2). http://news.bbc.co.uk/2/hi/asia-pacific/719623.stm (last visited May 4, 2005); Library 68. Id. art. XVII, § 4. of Congress Country Studies, Philippines, supra note 4, National Security. 69. Id. art. XVII, § 2. 26. See United Nations Populations Fund, The State of World Population 2004 70. Id. art. XVII, § 4. 107 (2004). The total population is projected to be 87.8 million as of July 2005. CIA 71. Flores and Reynolds, Foreign Law, Current Sources of Codes and Basic Legislation in World Factbook, supra note 1. UNFPA estimates that the projected population of the Jurisdictions of the World (2000). Philippines will be 127 million by 2050. United Nations Populations Fund, supra, at 72. Judiciary Reorganization Act of 1980, No. 129 (1980) (Phil.). 107. 73. Id. § 13. 27. The World Bank, GenderStats, Summary Gender Profile (estimates for 2000), 74. Library of Congress Country Studies, Philippines, supra note 4, ch. 4, Judicial http://genderstats.worldbank.org (last visited May 4, 2005). Department. 28. CIA World Factbook, supra note 1; U.S. Dep’t of State Background Notes, supra 75. Chan Robles Virtual Law Library, Philippine Judicial System, Special Courts, note 2. http://www.chanrobles.com/ (last visited May 5, 2005); id. Sandiganbayan. 29. U.S. Dep’t of State Background Notes, supra note 2. 76. Phil. Const., art. VIII, § 4(1). 30. See CIA World Factbook, supra note 1. 77. Id. art. VIII, §§ 4(2), 5(2). See id. art. VIII, § 5(1). The Supreme Court may review 31. U.S. Dep’t of State Background Notes, supra note 2; Bureau of Democracy, the sufficiency of the factual basis of the proclamation of martial law or the suspension of Human Rights, and Labor, U.S. Department of State, Philippines Country the privilege of the writ of habeas corpus. Id. art. VII, § 18. Report on Human Rights Practices 2004, http://www.state.gov/g/drl/rls/ 78. Id. art. VIII, § 9. The Judicial and Bar Council is under the supervision of the hrrpt/2004/41657.htm (last visited May 4, 2005). Supreme Court, composed of the Chief Justice as ex officio Chair, the Secretary of Jus- 32. See CIA World Factbook, supra note 1. tice, and a representative of the Congress as ex officio Members, a representative of the 33. United Nations, List of Member States, http://www.un.org/Overview/unmem- Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a repre- ber.html (last visited May 4, 2005). sentative of the private sector. Id. art. VIII, § 8(1). 34. Association of Southeast Asian Nations, Member Countries, http://www. 79. Id. art. VIII, § 11. To qualify for appointment as a Member of the Supreme Court, a aseansec.org/74.htm (last visited May 4, 2005). person must be a citizen of the Philippines, at least 40 years of age, and must have been a 35. Asia-Pacific Economic Cooperation, Member Economies, http://www.apecsec. judge of a lower court or engaged in the practice of law in the Philippines for 15 years or org.sg/apec/member_economies.html (last visited May 4, 2005). more. Id. art. VIII, § 7.1. PAGE 158 WOMEN OF THE WORLD:

80. Id. art. VIII, § 11. the Philippines 1, http://www.moj.go.jp/ENGLISH/RATI/ICD/icd-29.pdf (last vis- 81. Judiciary Reorganization Act of 1980, No. 129, § 3 (1980) (Phil.). ited May 5, 2005). 82. Id. § 9; St. Martin Funeral Home v. National Labor Relations Commission, et al., G. 106. Ponferrada, supra note 105, at 1. R. No. 130866 (1998) (Phil.). The High Court held that Section 9 of B. P. No. 129 refer- 107. Pursuant to section 2, rule VI of the 1991 Katarungang Pambarangay Implementing ring to appeals from the NLRC to the Supreme Court is interpreted to refer to petitions Rules. Ponferrada, supra note 105, at 2. for certiorari under Rule 65 and, consequently, all such petitions should be initially filed 108. Ponferrada, supra note 105, at 1; Local Government Code of 1991, Republic Act No. in the Court of Appeals. The Court of Appeals also has exclusive appellate jurisdiction 7160, bk. III, tit. 1, ch. 7 (1991) (Phil.). A Supreme Court – UNDP Issue Paper on Local over the Securities and Exchange Commission, the Social Security Commission, and the Autonomy and Administration of Justice conducted by the Ateneo School of Govern- Employees Compensation Commission. Judiciary Reorganization Act of 1980 § 9(3). ment, indicates that in 1988 alone, a total of 279,115 barangay disputes were recorded 83. Judiciary Reorganization Act of 1980 § 13. nationally. Out of this total, 236,452 cases were settled (84% resolution rate). Id. at 2. 84. Id. § 22. 109. Ponferrada, supra note 105, at 1. 85. Id. § 19(5). 110. Id. at 2. 86. Family Courts Act of 1997, Republic Act No. 8369, § 3 (1997) (Phil.). The Family 111. Id. Courts have exclusive original jurisdiction of, among others, criminal cases where the 112. Id. accused is below 18 years of age or where the victim is a minor; petitions for guardian- 113. Id. ship, custody of children, habeas corpus of children; petitions for adoption of children; 114. Id. at 6. Some Alternative Dispute Resolution mechanisms are unwritten based on complaints for annulment of marriage; declaration of nullity of marriage and those relat- one’s honor and are effective among the cultural minorities. Id. at 1. ing to marital status and property relations of husband and wife; petitions for support 115. Alternative Dispute Resolution Act of 2004, Republic Act No. 9285 (2004) (Phil.). and/or acknowledgment; petitions for declaration of status of children as abandoned, 116. The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, § 15 (1997) dependent or neglected; petitions for voluntary or involuntary commitment of children; (Phil.). the suspension, termination, or restoration of parental authority; and petitions for the 117. National Statistical Coordination Board, Philippine Statistical System, constitution of the family home. Special Protection of Children Against Abuse, Exploi- Databases, Philippine Standard Geographic Codes, List of regions, (figures as of tation and Discrimination Act, Republic Act. No. 7610 (1992), amended by Republic Act June 2005) http://www.nscb.gov.ph/activestats/psgc/listreg.asp (last visited Sept. 22, No. 7658, § 5 (1993). The Family Courts also have exclusive original jurisdiction on cases 2005). of domestic violence against women and children. Family Courts Act of 1997 § 5(k). 118. Phil. Const., arts. II, § 25, X, §§ 1–2; Local Government Code of 1991, Republic 87. Family Courts Act of 1997 § 25. Act No. 7160, §§ 440–442, 448–453, 459–462 (1991) (Phil.); National Statistical 88. These include all violations of city or municipal ordinances, offenses punishable Coordination Board, A City and a Barangay Were Created (2004) (figures as of with imprisonment not exceeding six years, civil actions where the value of the personal Dec. 31, 2004), http://www.nscb.gov.ph/factsheet/pdf05/fs1_05.asp (Jan. 27, 2005). A property, or amount of the demand does not exceed 100,000 pesos or, in Metro Manila barangay is made up of a number of sitios (neighborhoods) which are groups of house- where such personal property, or amount of the demand does not exceed 200,000 pesos. holds that form the basic foundations of society above the family level. Each sitio com- Judiciary Reorganization Act of 1980, No. 129, §§ 32.2, 33.1 (1980) (Phil.). prises about 15 to 30 households (mostly part of the same family), and most barangays 89. Chan Robles Virtual Law Library, Philippine Judicial System, Municipal Trial number from 150 to 200 households. Groups of barangays are combined into munici- Courts, supra note 75. It is referred to as such if it covers only one municipality; other- palities. See Library of Congress Country Studies, Philippines, supra note 4, ch. 2, wise, it is called Municipal Circuit Trial Court if it covers two or more municipalities. Id. Rural Social Patterns. 90. Administrative Circular No. 14-93, § I (1993) (Phil.). The exceptions, inter alia, are 119. Wikipedia, The free encyclopedia, Regions of the Philippines, http:// where one party is the government; where one party is a public officer or employee and en.wikipedia.org/wiki/Regions_of_the_Philippines (last modified Apr. 6, 2005). the dispute involves the performance of his official duties; generally, disputes involving 120. Id. parties who actually reside in barangays of different cities or municipalities; offenses 121. Id. for which the law prescribes a maximum penalty of imprisonment exceeding one year 122. See Library of Congress, Philippines, supra note 4, ch. 4 Organization. Congress or a fine of over 5,000 pesos; disputes where urgent legal action is necessary to prevent passed a law creating an Autonomous Region in Cordillera, but a 1990 referendum held injustice from being committed or further continued; and labor disputes arising from in five provinces of the region failed to ratify autonomy. In 1991, the Supreme Court employer-employee relations. Id. voided the Cordillera Autonomous Region, stating that Congress never intended for a 91. Administrative Circular No. 14-93 § IV. single province to constitute an autonomous region. Id. ch. 4, Regional Autonomy. 92. Chan Robles Virtual Law Library, Philippine Judicial System, Court of Tax 123. Id. ch. 4. Appeals, supra note 75. 124. Id. 93. See An Act to Strengthen the Functional and Structural Organization of the San- 125. Id. diganbayan, Amending for that Purpose Presidential Decree No. 1606, as amended, 126. Id. Republic Act No. 7975, § 2 (1995); An Act Further Defining the Jurisdiction of the San- 127. Local Government Code of 1991, Republic Act No. 7160, §§ 465–466 (1991) (Phil.). diganbayan, Amending for the Purpose Presidential Decree No. 1606, as amended, Pro- 128. Id. §§ 455–456. viding Funds Therefor, and for Other Purposes, Republic Act No. 8249, § 4 (1997) (Phil.). 129. Id. §§ 444–445. 94. Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083, art. 130. Id. §§ 389(a), 423(a). 137 (1977) (Phil.). 131. Id. §§ 390, 447, 457, 467. 95. Id. art. 154. 132. Id. §§ 446(a), 457(a), 467(a). 96. Id. art. 144; Chan Robles Virtual Law Library, Philippine Judicial System, Back- 133. Id. §§ 446(b), 457(b), 467(b). ground on Philippine Judicial System, supra note 75. Sharia district courts are presided 134. Id. § 384. over by one judge. Code of Muslim Personal Laws of the Philippines art. 138. 135. Id. § 384. See Administrative Circular No. 14-93 (1993) (Phil.). 97. See Code of Muslim Personal Laws of the Philippines. 136. Local Government Code of 1991 § 423(a). 98. An Act Providing for an Organic Act for the Autonomous Region in Muslim Mind- 137. Id. § 430. anao, Republic Act No. 6734, art. IX, §§ 2–12 (1989) (Phil.). It might seem confusing that 138. Local Government Code of 1991, Republic Act No. 7160, § 43 (1991) (Phil.), amend- the Sharia Circuit and District Courts are created by one Act – the Code of Muslim Per- ed by Republic Act No. 8524, § 1 (1998) (Phil.). sonal Laws, while the Sharia Appellate Court is created under another Act – the Act for 139. Phil. Const., art. X, § 3. See Local Government Code of 1991 tit. 9, ch. 2 . the Autonomous Region in Muslim Mindanao. This is because the Sharia Circuit and 140. Phil. Const., art. X, § 5. See Local Government Code of 1991 §§ 384–386, 440– District Courts were created in 1977, before there ever was an Autonomous Region. The 442, 448–453, 459–462. Autonomous Region was created in 1989 and, as a result, a Sharia Appellate Court was 141. Phil. Const., art. X, § 2. also created to add to the already existing Sharia Circuit and District Courts in Muslim 142. Id. art. X, § 4. Mindanao. Id. art. IX, § 2. The Sharia Appellate Court is comprised of one Presiding 143. An Act Providing for an Organic Act for the Autonomous Region in Muslim Justice and two Associate Justices. Id. art. IX, § 3. Mindanao, Republic Act No. 6734, art. IV, § 2 (1989) (Phil.). The first regular elections 99. An Act Providing for an Organic Act for the Autonomous Region in Muslim Mind- for regional governor, regional vice-governor and members of the Regional Legislative anao art. IX, § 5(2). Assembly of the Autonomous Region in Muslim Mindanao were held in March, 1993. 100. See id. art. IX, § 6. An Act Providing for the Date of Regular Elections for Regional Governor, Regional 101. Id. art. IX, § 14; An Act Providing for an Organic Act for the Cordillera Autonomous Vice-governor and Members of the Regional Legislative Assembly of the Autonomous Region, Republic Act No. 6766, art. VII, § 1 (1989) (Phil.). Region in Muslim Mindanao and for other Purposes, Republic Act No. 7647, § 1 (1993) 102. An Act Providing for an Organic Act for the Autonomous Region in Muslim Min- (Phil.) amended by Republic Act No. 8746, § 1 (1999) (Phil.). danao art. IX, § 14. 144. An Act Providing for an Organic Act for the Autonomous Region in Muslim Min- 103. Id. art. IX, § 17(1). danao art. VIII. In case of death, permanent disability, removal from office, or resigna- 104. Id. art. IX, § 17(3). tion of the Governor, the Vice-Governor shall become Governor to serve the unexpired 105. Press Release, Integrated Bar of the Philippines, MOU on Katarungang Pambaran- term. In case of death, permanent disability, removal from office, or the resignation of gay Law signed (Nov. 2002), http://www.ibp.org.ph/mainframe/pressrelease/pressre- both the Governor and the Vice-Governor, the Speaker of the Regional Assembly shall lease.php?id=30 (last visited May 5, 2005); Bernardo T. Ponferrada, Barangay Justice act as Governor until the Governor and Vice-Governor are elected and qualified in a System and Other Alternative Dispute Resolution Mechanics (Mediation) in special election called for the purpose. Id. art. VIII, § 10. The Regional Governor or the PHILIPPINES PAGE 159

Vice-Governor may be removed from office for culpable violation of the Constitution or 176. Code of Muslim Personal Laws of the Philippines, bk. II, tit. I, arts. 8–9. the Organic Act, treason, bribery, graft and corruption, other high crimes or betrayal of 177. Id. bk. IV, tit. I, art. 137. public trust by a three-fourths (3/4) vote of all the Members of the Regional Assembly. 178. Id. bk. V, tit. V. Id. art. VIII, § 12. 179. The Indigenous Peoples Rights Act of 1997. 145. Id. art. VIII, § 6(1)–(2). To qualify as a governor and vice-governor, one must be 180. Phil. Const., art. II, § 11. a Philippine citizen, a registered voter of the autonomous region, at least 35 years old, 181. Id. art. II, § 9. and a resident of the autonomous region for at least five years immediately preceding the 182. Id. art. II, § 10. election. Id. art. VIII, §§ 3–4. 183. See Nat’l Econ. & Dev. Auth., Republic of the Phil, Medium Term Philippine 146. Id. art. VIII, § 2. Development Plan 2004–2010 (PowerPoint presentation), http://www.neda.gov. 147. Id. art. VIII, § 17. ph/econreports_dbs.asp (Jan. 24, 2005) [hereinafter NEDPA PowerPoint presentation]; 148. Id. art. VIII, § 4. The Vice-Governor serves for three-year terms for a maximum of see also Nat’l Econ. & Dev. Auth., Republic of the Phil., Medium Term Philippine two consecutive terms. Id. art. VIII, § 6(1)–(2). Development Plan 2004–2010 (Press Release), http://www.news.ops.gov.ph/mtp- 149. Id. art. VIII, § 18. dp2004-2010.htm (last visited May 9, 2005). 150. Id. 184. National Economic and Development Authority, Republic of the Philip- 151. Id. art. VII, § 1. The organic act of autonomous regions shall provide for legisla- pines, Medium Term Philippine Development Plan 2004–2010 (2004), available tive powers over: (1) administrative organization; (2) creation of sources of revenues; at http://www.neda.gov.ph/../ads/mtpdp/MTPDP2004-2010/MTPDP%202004- (3) ancestral domain and natural resources; (4) personal, family, and property relations; 2010%20NEDA%20v11-12.pdf (last visited May 10, 2005) [hereinafter NEDA Medium (5) regional urban and rural planning development; (6) economic, social, and tourism Term Development Plan]. development; (7) educational policies; (8) preservation and development of the cultural 185. Phil. Const., art. VII, § 21. heritage; and (9) such other matters as may be authorized by law for the promotion of 186. Id. art. II, § 2. the general welfare of the people of the region. Phil. Const., art. X, § 20. 187. Convention on the Elimination of All Forms of Discrimination against Women, 152. An Act Providing for an Organic Act for the Autonomous Region in Muslim Mind- adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. anao, Republic Act No. 6734, art. VII, § 4 (1989) (Phil.). Doc. A/34/46 (1979) (entered into force Sept. 3, 1981) (ratified by the Philippines Sept. 4, 1981); 153. Id. art. VII, § 5. No person shall be a Member of the Regional Assembly unless he or Optional Protocol to the Convention on the Elimination of Discrimination against she is: (1) a natural-born citizen of the Philippines; (2) at least 21 years of age on the day Women, Oct. 6, 1999, G.A. Res. 54/4, U.N. GAOR, 54th Sess., U.N. Doc A/Res/54/4 of the election; (3) able to read and write; (4) a registered voter of the district in which (1999) (entered into force Dec. 22, 2000) (ratified by the Philippines Feb. 12, 2004). he or she shall be elected on the day he or she files the certificate of candidacy; and (5) a 188. Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, resident thereof for a period of not less than five years immediately preceding the day of annex, U.N. GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989) reprinted the election. Id. art. VII, § 7. in 28 I.L.M. 1448 (entered into force Sept. 2, 1990) (ratified by the Philippines Sept. 20, 1990). 154. Id. art. VI, § 1; Phil. Const., art. X, § 16. 189. Optional Protocol to the Convention of the Rights of the Child on the involvement 155. Phil. Const., art. X, § 21. of children in armed conflict, adopted May 25, 2000, G.A. Res. 54/263, U.N. GAOR, 156. See The Official Government Portal of the Republic of the Philippines, 54th Sess., U.N. Doc No. A/RES/54/263 (entered into force Feb. 12, 2002) (ratified by the About the Philippines, http://www.gov.ph/aboutphil/general.asp (last visited May 9, Philippines Sept. 26, 2003). 2005) . 190. Optional Protocol to the Convention of the Rights of the Child on the sale of chil- 157. The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, § 3(i) (1997) dren, child prostitution and child pornography, adopted May 25, 2000, G.A. Res. 54/263, (Phil.). U.N. GAOR, 54th Sess., U.N. Doc A/RES/541263 (2000) (entered into force Jan. 18, 2002) 158. Id. § 18. (ratified by the Philippines June 28, 2002). 159. Randall A. Chamberlain, Regulating Civil Society: The Philippine Council 191. International Convention on the Elimination of All Forms of Racial Discrimination, for NGO Certification (PCNC) 8 (2000), http://www.pcnc.com.ph/CivilSoc.PDF 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) (ratified with declaration by the Philippines Jan. (last visited May 6, 2005). 4, 1969). 160. Peace Corps, An NGO Training Guide for Peace Corps Volunteers, Module 1: 192. International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, G.A. 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Doc A/6316 (1966), 999 U.N.T.S. 3 (entered 165. Flores and Reynolds, supra note 71, citing S.M. Santos, Jr., “Common law elements into force Jan. 3, 1976) (ratified by the Philippines Jan. 3, 1976). in the Philippine mixed legal system” in 2 Australian journal of Asian law 34 (2000) at p. 195. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 34. See Library of Congress Country Studies, Philippines, supra note 4, ch. 5, Penal or Punishment, adopted Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. Law. No. 51, at 197, U.N. Doc. A/39/51 (1984), 1465 U.N.T.S. 85 (entered into force June 26, 1987) 166. See Library of Congress Country Studies, Philippines, supra note 4, ch. 4, Con- (accession with declarations by the Philippines June 26, 1987). stitutional Framework. 196. International Convention on the Protection of the Rights of All Migrant Workers 167. Phil. Const., art. III, §§ 1, 5, 11. and Members of Their Families, adopted Dec. 18, 1990, G.A. Res. 45/158, Annex 45, U.N. 168. Id. art. XIII, § 1. GAOR, 45th Sess., Supp. No. 49A, at 262, U.N. Doc. A/45/49 (1990) (entered into force July 169. Id. art. XIII, § 17. Commission on Human Rights is vested with several powers, 1, 2003) (ratified by the Philippines July 1, 2003). including the power to investigate human rights violations; provide appropriate legal 197. Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, measures for the protection of human rights; promote human rights through education Austria, June 14–25, 1993, U.N. Doc. A/CONF.157/23 (1993); Programme of Action of the and research; and monitor the Philippine government’s compliance with international International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994, U.N. treaty obligations, amongst others. Id. art. XIII, §§ 17–18(1), (3), (5), (7). Doc. A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for Action, Fourth 170. Id. arts. II, XV. World Conference on Women, Beijing, China, Sept. 4–15, 1995, U.N. Doc. A/CONF.177/20 171. Id. art. II, § 6. (1995); Millennium Declaration, Millennium Assembly, New York, United States, Sept. 6–8, 172. Id. art. II, § 12. 2000, U.N. GAOR, 55th Sess., U.N. Doc. A/Res/55/2 (2000). 173. Id. art. II, § 22. 198. Phil. Const., art. II, § 15. 174. Civil Code of the Philippines, Republic Act No. 386 (1949); Revised Penal Code of 199. Id. art. II, § 9. the Philippines, Republic Act No. 3815 (1930); Family Code of the Philippines, Executive 200. Id. art. XIII, § 11. Order No. 209 (1987); Labor Code of the Philippines, Presidential Decree No. 442, as 201. NEDA Medium Term Development Plan, supra note 184; Department of amended (1974); Child and Youth Welfare Code of the Philippines, Presidential Decree Health, Republic of the Philippines, National Objectives for Health, Philip- No. 603 (1974). pines 1999–2004, at 17 (1999); Department of Health, Republic of the Philippines, 175. Flores and Reynolds, supra note 71, citing S.M. Santos, Jr., “Common law elements Health Sector Reform Agenda, at iii (1999). See Department of Health, Republic in the Philippine mixed legal system” in 2 Australian Journal of Asian Law 34 (2000) at of the Philippines, The Philippines Health Sector Reform Agenda, Philippines 34. See The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371 (1997) (Phil.); Chalks Up Modest Health Sector Reform Achievement But Needs to Address Risks, see also Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083 http://www.doh.gov.ph/hsra/tsk/index.htm (last visited May 10, 2005). (1977) (Phil.); see also An Act Providing for an Organic Act for the Autonomous Region 202. NEDA Medium Term Development Plan, supra note 184, at x. in Muslim Mindanao, Republic Act No. 6734 (1989) (Phil.). The National Commission 203. NEDPA PowerPoint presentation, supra note 183. on Indigenous Peoples (NCIP) was created to formulate and implement policies and 204. See National Objectives for Health, Philippines 1999–2004, supra note 201, at i programs protecting and promoting the rights of indigenous peoples. The Indigenous (“…correlation of poor health and lower socioeconomic status…no means of paying …”). Peoples Rights Act of 1997 § 3(k). 205. 2002 Philippine Statistical Yearbook, at 2-24 tbl.2.11 (2002). In 2000, 39.4% of the PAGE 160 WOMEN OF THE WORLD:

population had an annual per capita income that falls below the annual per capita poverty 251. Id. threshold, which is defined as the annual per capita income required to satisfy nutritional 252. Philippine Management Program Directional Plan, 2001–2004, supra note 225, requirements and other basic needs. Id. at 35. 206. National Objectives for Health, Philippines 1999–2004, supra note 201, at i–ii. 253. Id. 207. Id. at 25. 254. Department of Health, Republic of the Philippines, Annual Report 2001, 208. Id. at 83. Setting the Momentum for Health Reforms 22 (2001), http://www.doh.gov.ph/ 209. Id. at 88. library/references/doh_ar_2001.pdf (last visited May 19, 2005). 210. Id. at 90–93. 255. National Statistical Coordination Board, 2002 Philippine National Health 211. Id. at 95. Accounts, Government Expenditures, http://www.nscb.gov.ph/stats/pnha/govern- 212. Id. at 99. ment.asp (posted July 13, 2003). 213. Id. at 100–101. 256. Orville Solon, et. Al. Insurance and Price Discrimination in the Market for Hospital 214. Id. at 102–105. Services in the Philippines, in Health Sector Reform in Asia: Proceedings of the Region- 215. Id. at 106–115. al Conference 22-25 May 1995, 138. 216. Id. at 122–123. 257. National Objectives for Health, Philippines 1999–2004, supra note 201, at 13. 217. Id. at 122. 258. NSCB Sources of Funds for Health, supra note 248. 218. Id. at 171–172. 259. National Health Insurance Act of 1995, Republic Act No. 7875, art. III, § 5 (1995) 219. Id. at 189–190. (Phil.). 220. Id. at 18. 260. Id. art. IV, § 16(a). 221. Id. at 19. 261. Id. art. I, § 2(b), (l). 222. Id. at 20. 262. National Statistics Office & ORC Marco, National Demographic and 223. Id. at 20. Health Survey 2003, at xxi (2004). 224. Id. at 21. 263. Id. 225. Health Sector Reform Agenda, supra note 201, at iii–iv (1999); Commission on 264. Paul Gertler & Orville Solon, Who Benefits from Social Health Insurance? Population, Philippine Management Program Directional Plan, 2001–2004, at Evidence from the Philippines 18 (2002), http://faculty.haas.berkeley.edu/gertler/ 31–32 (2001). working_papers/Gertler-Solon%20Philippines%20Hopsital%20Paper%203-1-02.pdf 226. Exec. Order No. 102, Redirecting the Functions and Operations of the Department (Mar. 1, 2002). of Health § 2(a) (1999) (Phil.). 265. Id. at 26. The data was gathered in 1991, before the national insurance program was 227. Id. § 1. Assistance refers to technical collaborations, logistical support, grant provi- instituted. sions or allocations, and other partnership mechanisms. Id. § 2(j). 266. In 1997, the John Snow Research and Training Institute, through a program called 228. Id. § 2(b). “Technical Assistance for the Conduct of Integrated Family Planning and Maternal 229. Id. §§ 2(g), 3(d). Health Activities by Philippine Non-Governmental Organizations (TANGO),” funded 230. National Statistical Coordination Board, Philippine Statistical System, by the United States Agency for International Development, established a network of Databases, Philippine Standard Geographic Codes, List of regions, (figures as of clinics called Well Family Midwife Clinics (WFMCs). Well-Family Midwife Clinic, June 2005) http://www.nscb.gov.ph/activestats/psgc/listreg.asp (last visited Sept. 22, About WFMC, http://www.wfmc.com.ph/wfmc.htm (last visited May 10, 2005). 2005); National Objectives for Health, Philippines 1999–2004, supra note 201,at 12 These WFMCs are owned and operated by licensed midwives and provide family plan- (1999). ning, maternal and child health services as well as other services such as basic life support 231. 2002 Philippine Statistical Yearbook, supra note 205, 9-29. and referrals. Id. WFMCs receive subsidies in supplies and administrative and technical 232. Id. 9-31 (numbers from 1999 & 1997 respectively). assistance from external funding. Id. WFMCs cater to low- and middle-income families. 233. National Objectives for Health, Philippines 1999–2004, supra note 201,at 12. Id. 234. Id. at 14. 267. Emily Christi A.Cabegin et al., Willingness to Pay for Well-Family Midwife 235. Id. at 13. Services in the Philippines 12 (2001), http://www.dec.org/pdf_docs/PNACN612.pdf 236. Local Government Code of 1991, Republic Act No. 7160, § 17 (1991) (Phil.); (Dec. 2001). National Objectives for Health, Philippines 1999–2004, supra note 201, at 12. 268. Also known as the food and drug administration. Food, Drug, and Cosmetic Act, 237. Department of Health, Republic of the Philippines & Plaridel Communica- Republic Act No. 3720, § 3 (1963) (Phil.), amended by Exec. Order No. 175, Further tions Cooperative, Primer on Devolution of Health Services 3. Amending Republic Act No. 3750, § 4 (1987) (Phil.). 238. Local government units are the political subdivisions of the Philippines, that is, prov- 269. Id. §§ 4(e), 11, 21-B, amended by Exec. Order No. 175, Further Amending Republic inces, cities, municipalities, and barangays (villages). During the writing of this report, Act No. 3750, §§ 7–8, 15 (1987) (Phil.). there were 79 provinces, 114 cities, 1,496 municipalities, and over 40,000 barangays in the 270. Id. § 21(b)(1)–(2), amended by Exec. Order No. 175, Further Amending Republic Philippines. National Objectives for Health, Philippines 1999–2004, supra note 201, Act No. 3750, § 14 (1987) (Phil.). at 4; 2002 Philippine Statistical Yearbook, supra note 205, 15–16. 271. Id. § 26(a), amended by Exec. Order No. 175, Further Amending Republic Act No. 239. Primer on Devolution of Health Services, supra note 237, at 2. 3750, § 19 (1987) (Phil.). 240. U.S. Agency for International Development, Mission in the Philippines, 272. Bureau of Health Devices and Technology, Department of Health, Republic Local Government Unit Performance Program (LPP), http://www.usaid-ph.gov/ of the Philippines, Brief Description, http://www.doh.gov.ph/bhdt/overview.htm health%20lpp_usaid.htm (last modified August 2001) [hereinafter USAID Local Gov- (last visited May 11, 2005). ernment Program]. 273. Phil. Const., art. XIII, § 12. 241. U.S. Agency for International Development, Mission in the Philippines, 274. Creating The Professional Regulation Commission and Prescribing Its Powers and Final Assessment Report: USAID/Philippines Support to Local Governments Functions, Presidential Decree No. 223, § 5 (1973) (Phil.). for Family Planning and Health (2002), http://www.usaid-ph.gov/Documents/ 275. Id. § 6(g). For example, the Board of Medicine requires that an applicant must not MGP%20assessment.doc (April 20, 2002). have been convicted by a court of any offense involving moral turpitude, must be a hold- 242. USAID Local Government Program, supra note 240. er of the degree of Doctor of Medicine or its equivalent from a government-recognized 243. See Department of Health, Republic of the Philippines, Sentrong Sigla 2003– college of medicine, and twenty-one years of age. The Medical Act of 1959, Republic Act 2007, Phase II, at 2, http://www.doh.gov.ph/sigla (last visited May 27, 2005). Email No. 2382, art. 3, § 9 (1959) (Phil.). The Board of Nursing requires that an applicant must from Dr. Junice L. Demeterio-Melgar, Likhaan, to Nile Park, Center for Reproductive have a bachelor’s degree in nursing from a duly-recognized institution and must be at Rights (May 23, 2005, 04:45:00 EST) (on file with the Center for Reproductive Rights). least eighteen years old. Philippine Nursing Act of 1991, Republic Act No. 7164, § 13(b), 244. Department of Health, Republic of the Philippines, ICHSP: DOH Response (d) (1991). The Board of Pharmacy requires an applicant to have a bachelor’s degree in to Devolution, http://www.doh.gov.ph/ichsp/html/response.htm (last visited May pharmacy and to complete an internship program. An Act Regulating the Practice of 10, 2005). Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for 245. 2002 Philippine Statistical Yearbook, supra note 205, 9-29. Other Purposes, Republic Act No. 5921, § 18(c)–(d) (1969). 246. See id.(figure extrapolated from the a total of 1708 hospitals). 276. For example, the Code of Ethics of the Medical Profession in the Philippines, pro- 247. USAID, Mission in the Philippines, USAID/Philippines Strategy Fiscal Year mulgated as Republic Act No. 4224, outlines different duties of Filipino physicians to 2005–2009, at 10 (2004), http://www.usaid-ph.gov/Documents/USAID%20Phils.%20S their patients, community, colleagues and the profession. Jose Maria Enriquez Ferrer, trategy%20(Public)2005-2009.doc (Mar. 14, 2005). Code of Ethics of the Medical Profession in the Philippines, Pinoy.MD, http://pinoy. 248. National Statistical Coordination Board, 2002 Philippine National md/modules/news/article.php?storyid=101 (June 13, 2003). Health Accounts, Sources of Funds for Health, http://www.nscb.gov.ph/stats/ 277. The Medical Act of 1959 art. 3, § 24(5). pnha/default.asp (last visited Apr. 8, 2005) [hereinafter NSCB Sources of Funds for 278. The Code of Conduct and Ethical Standards for Public Officials and Employees, Health]. Republic Act No. 6713, §§ 2, 3(b) (1989) (Phil.). 249. National Statistical Coordination Board, 2002 Philippine National Health 279. Magna Carta of Public Health Workers, Republic Act No. 7305, § 1 (1992) (Phil.) Accounts, Executive Summary, http://www.nscb.gov.ph/stats/pnha/exsum.asp (corresponds to Magna Carta of Public Health Workers, Republic Act No. 7305, Revised (posted July 13, 2003). Implementing Rules and Regulations (1999) (Phil.)). 250. 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menting Rules and Regulations, R. XIII (1999) (Phil.). 311. Email from Clara Rita Padilla, Executive Director, EnGendeRights, to Nile Park, 281. Traditional and Alternative Medicine Act of 1997, Republic Act No. 8423, § 5 (1997) Center for Reproductive Rights (Nov. 3, 2004, 13:50:00 EST) (on file with the Center (Phil.). for Reproductive Rights). 282. Revised Rules and Regulations Governing the Registration, Licensure and Opera- 312. United Nations Educational, Scientific and Cultural Organization tion of Hospitals and Other Health Facilities in the Philippines, Administrative Order (UNESCO), National Legislation Concerning Human Reproductive and Thera- No. 70-A s. 2002, § 5 (2002) (Phil.). peutic Cloning 12 (2004), http://unesdoc.unesco.org/images/0013/001342/134277e. 283. Id. § 9.4. pdf (June 2004). 284. Id. § 11. 313. Department of Health, Office of the Secretary, Administrative Order No. 125 S. 285. Id. § 17. 2002 National NFP Strategic Plan Year 2002-2006. 286. Philippine Health Insurance Corporation, Accreditation (2000), http://www. 314. National Family Planning Policy, Administrative Order No. 50-A s. 2001, § philhealth.gov.ph/accreditation.htm (last visited May 11, 2005). IV(E)(1)–(2) (2001) (Phil.); Philippine Management Program Directional Plan, 287. Id. 2001–2004, supra note 225, at 38. 288. Anti-Medical Malpractice Act of 2004, Senate Bill No. 1720, 13th Cong., 1st Reg. 315. Philippine Management Program Directional Plan, 2001–2004, supra note 225, Sess. § 4 (2004) (Phil.). at 39. 289. Id.. § 3(2)–(3). 316. National Family Planning Policy § V, at 5–9; Philippine Management Program 290. Philippine Medical Association, Position Paper of the Philippine Medical Association Directional Plan, 2001–2004, supra note 225, at 39–41 (2001). on S.B. 743- An Act Punishing the Malpractice of Any Medical Practitioner in the Phil- 317. Philippines National Statistics Office, 2002 Family Planning Survey, Final ippines and for Other Purposes, Introduced by Senator Manuel B. Villar 14–15, http:// Report 14 tbl.4 (2003) [hereinafter 2002 Family Planning Survey]. www.pma.com.ph/PositionPaperOnSenateBill743.doc (last visited May 19, 2005). 318. National Demographic and Health Survey 2003, supra note 262, at 58 tbl.5.4 291. See Revised Penal Code, No. 3815 (1930) (Phil.); Civil Code of the Philippines, (2004). The survey reports the percentage of currently married women age 15-49 using Republic Act No. 386 (1949). modern and traditional family planning methods. 292. See e.g., Revised Penal Code art. 365; Civil Code of the Philippines arts. 1172–1174, 319. Id. 2177–2179. 320. Id. 293. Magna Carta of Public Health Workers, Republic Act No. 7305, § 13(c) (1992) (Phil.) 321. Id. (corresponds to Magna Carta of Public Health Workers, Republic Act No. 7305, Revised 322. Id. Implementing Rules and Regulations (1999) (Phil.)). 323. 2002 Family Planning Survey, supra note 317, at 23 tbl.9. 294. Philippine Medical Association, Code of Ethics of the Medical Profession, 324. National Demographic and Health Survey 2003, supra note 262, at 100. art. 2, § 4 (1960) (amended 1965 and 1993), http://www.pma.com.ph/01%20PMA_ 325. Id. at 101 tbl.7.10. back_6CodeofEthics.asp (May 25, 1993). 326. Id. at 101 tbl.7.9. 295. Id. 327. Revised Population Act of the Philippines, Presidential Decree No. 79, § 4(f), (i) 296. Pending at the House of Representatives are House Bill Number (HBN) 666 (14 (1972). patient’s rights) and HBN 2524 (13 patient’s rights), both titled “An Act Declaring the 328. Id. § 5(a), (d); Presidential Decree No. 1204, § 1 (1977) (Phil.). Rights of Patients and Prescribing Penalties for Violations Thereof.” Pending at the 329. Republic Act No. 4729, An Act to Regulate the Sale, Dispensation, and/or Distribu- Senate are Senate Bill Number (SBN) 2235, SBN 868, and SBN 588, all titled “An Act tion of Contraceptive Drugs and Devices (1966). Declaring the Rights of Patients and Prescribing Penalties for Violations Thereof ”; and 330. An Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceuti- SBN 1720, “An Act to Protect against medical malpractice, punishing the malpractice cal Education in the Philippines and for other Purposes, Republic Act No. 5921 (1969). of any medical practitioner and requiring them to secure malpractice insurance and for 331. Pinky C. Serafica, Government’s creeping conservatism in family planning, Fil- other purposes (Anti-Medical Malpractice Act of 2004).” nurse–Online Philippine Nursing Community, Aug. 12, 2002, http://www.filnurse. 297. HBN 2524 was presented at the 12th Congress. At the 13th Congress, the revised com/greymatter/archives/00000045.shtml (Aug. 12, 2002). version of the bill was presented as SBN 588, with 15 patient’s rights. Magna Carta of 332. Delisting of Levonorgestrel 750mcg. (Postinor) from Bureau of Food and Drugs Patient’s Rights, SBN 588; An Act Declaring The Rights And Obligations Of Patients Registry of Drug Products, Bureau Circular No. 18 s. 2001 (2001) (Phil.). And Establishing a Grievance Mechanism For Violations Thereof And For Other Pur- 333. Presidential Decree No. 1013 (1976) (Phil.). poses, House Bill No. 261 (2004) (Phil.). 334. Commission on Population, Republic of the Philippines, Philippines Country 298. Magna Carta of Patient’s Rights, HBN 2524; Magna Carta of Patient’s Rights, SBN Report, Fifth Asian and Pacific Population Conference, 11–17 December 2002, 588. Bangkok 42 (2002) [hereinafter Philippines Report to Asian and Pacific Population 299. An Act Penalizing the Refusal of Hospitals and Medical Clinics to Administer Conference 2002]. Appropriate Initial Medical Treatment and Support in Emergency or Serious Cases, 335. National Family Planning Policy, Administrative Order No. 50-A s. 2001, § V(C)(6), Amending for the Purpose Batas Pambansa Bilang 702, Otherwise Known as “An Act at 7 (2001) (Phil.). Prohibiting the Demand of Deposits or Advance Payments for the Confinement or 336. Id. Treatment of Patients in Hospitals and Medical Clinics in Certain Cases,” Republic Act 337. See Code of Ethics of the Medical Profession, supra note 294, art. 2, § 4. No. 8344, §§ 1, 4 (1996) (Phil.). 338. Philippines Report to Asian and Pacific Population Conference 2002, supra 300. Phil. Const. art. VX, § 3(a). Responsible parenthood is defined as the “will and note 334, at 21; Working draft of Women of the World: East and Southeast Asia, Philippines, ability to respond to the needs and aspirations of the family and the children” such as sec. II.B. at 20 (peer reviewed by Dr. Junice L. Demeterio-Melgar, Likhaan, rec’vd May “making decisions on the timing, spacing and number of children within the context 10, 2005) (on file with the Center for Reproductive Rights). of gender equity and sensitivity in accordance with their culture and religions beliefs.” 339. Working draft of Women of the World: East and Southeast Asia, Philippines, sec. II.B. at Philippine Management Program Directional Plan, 2001–2004, supra note 225 at 18 (peer reviewed by Dr. Junice L. Demeterio-Melgar, Likhaan, rec’vd May 10, 2005) (on 9–10, 30. file with the Center for Reproductive Rights). 301. NEDA Medium Term Development Plan, supra note 184, at 161. 340. Guidelines on Advertisement and Promotions of Prescription Pharmaceutical Prod- 302. 3 Population Division, United Nations, Abortion Policies: A Global Review ucts, Bureau of Food and Drugs Regulation No. 5 s. 1987, § 3 (1987) (Phil.). 36 (2002). Administrative Order No. 1-A, January 15, 1998 (as cited in PPMP Directional 341. Id. Plan at 30); UNFPA & International Planned Parenthood Federation (IPPF), Face 342. 16 Human Rights Watch, The Philippines–Unprotected: Sex, Condoms and to Face: Field Visits, Philippines: Sexual and Reproductive Health (1999), http:// the Human Right To Health 34 (2004). www.fieldvisits.org/plc_21.html (June 1999). 343. Id; “The Advertising Board of the Philippines or Adboard is a governing body com- 303. Department of Health, Office of the Secretary, Administrative Order No. 1-A s, posed of representatives of national organizations involved in advertising practice who 1998, Creation of a Philippine Reproductive Health Program; UNFPA & International have banded together to promote the development of the advertising industry through Planned Parenthood Federation (IPPF), supra note 302. self-regulation, in harmony with industry goals. The Adboard is the umbrella organiza- 304. The Reproductive Health Care Act of 2002, House Bill No. 4110, 12th Cong., 1st tion of the advertising industry.” Philippine Culture and Information, Official Reg. Sess. (2002) (Phil.). The counterpart to this bill, SBN 2325 has been filed by Sena- website on Philippine Culture and Information, Advertising in the Philippines, tor Rodolfo Biazon. Its first reading was on September 5, 2002, and it was then referred http://www.pia.gov.ph/philinfo/phadv.htm (last visited Sept. 21, 2005). to the Committee(s) on Health And Demography and Youth, Women and Family Rela- 344. The Family Planning Organization of the Philippines was created in 1969 upon the tions. It was also referred to the Committee on Finance on motion of the Chair. merger of the Family Planning Association of the Philippines and Planned Parenthood 305. The Reproductive Health Care Act of 2002, HBN 4110§ 2 . Movement of the Philippines. Family Planning Organization of the Philippines, 306.Id. § 6(a). Our Story, http://www.fpop.org.ph/fpop/ourstory.htm (last visited May 12, 2005). 307. Id. § 8. 345. Christine A. Varga & Imelda Zosa-Feranil , Adolescent Reproductive Health 308. Id. § 7(a)–(d). in Philippines: Status, Issues, Policies, and Programs 19 (2003), http://policyproject. 309. Id. § 10. com/pubs/countryreports/ARH_Philippines.pdf (Jan. 2003). 310. 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348. Id. 384. USAID, Mission in the Philippines, USAID/Philippines Strategy Fiscal Year 349. National Family Planning Policy, Administrative Order No. 50-A s. 2001, at 2 (2001) 2005–2009, supra note 247, at 10 (2004), http://www.usaid-ph.gov/Documents/USAID (Phil.). %20Phils.%20Strategy%20(Public)2005-2009.doc (Mar. 14, 2005). 350. Department of Health, Office of the Secretary, Department Circular No. 43 S. 1993, 385. National Family Planning Policy, Administrative Order No. 50-A s. 2001, § Sustainability of the Family Planning Program. IV(E)(1)–(2), at 3–4 (2001) (Phil); Philippine Management Program Directional 351. Philippine Health Insurance Corporation, Services and Benefits, http:// Plan, 2001–2004, supra note 225, at 38. www.philhealth.gov.ph/ipp.htm (last visited May 12, 2005). 386. Barangay-Level Total Development and Protection of Children Act, Republic Act 352. Implementing Guidelines for the Creation and Operationalization of Outreach/Itin- No. 6972, § 3(f) (1990). erant Teams for Voluntary Sterilization Services, Administrative Order No. 153 s. 2002, § 387. Food and Agriculture Organization of the United Nations, Nutrition III(A) (2002) (Phil.). Country Profiles–Philippines 19 (2001). This is the 1998 Nutrition Survey conducted 353. Id. § IV(B)(a). by the Food and Nutrition Research Institute of the Department of Science and Tech- 354. Family Planning Service, Department of Health, Republic of the Philippines, nology of Philippines, on 41 UNICEF-assisted provinces and cities. Contraceptive Supplies: A manual on how to obtain contraceptives from the 388. Id. Philippine Family Planning Program 4 (1998). 389. Philippine Food Fortification Act of 2000, Republic Act No. 8976 (2000). 355. Philippines Report to Asian and Pacific Population Conference 2002, supra 390. Foods under mandatory food fortification consist of rice, wheat flour, refined sugar, note 334, at 39. cooking oil, and other staple foods selected by the National Nutrition Council. Philip- 356. Id. pine Food Fortification Act of 2000 § 6. 357. Local Government Code of 1991, Republic Act No. 7160, § 17(b)(2)(iv) (1991) (Phil.); 391. Id. §§ 4–6, 10. Philippine Management Program Directional Plan, 2001–2004, supra note 225, at 392. Id. § 3(c). 34. 393. Id. § 11. 358. Local Government Code of 1991 § 17(b)(2)(iv). 394. Food and Nutrition Research Institute, Medium-Term Philippine Food and 359. Exec. Order No. 307, Implementing a Family Planning Program at the Local Gov- Nutrition Plan, 1999-2004, http://www.fnri.dost.gov.ph/htm/ppan.htm (last modi- ernment Level (1996) (Phil.). fied May 2005). 360. Clara Rita A. Padilla, Local Policies Deny Women’s Rights to Health, 1 Rights 395. Country Programme Action Plan between the Government of the Philip- Now! 18, 18–19 (2002); Florence Macagba Tadiar, Reproductive Health Pro- pines and United Nations Population Fund, 2005–2009, supra note 377, § 18. grammes Under Health Reform: The Philippine Case, http://www.icomp.org.my/ 396. Phil. Const. art. 2, § 12. Country/inno7b.html (last visited May 13, 2005). 397. Joaquin G. Bernas, S. J., The Constitution of the Republic of the Philippines With 361. 16 Human Rights Watch, supra note 342, at 28–31. Annotations based on Committee Deliberations 8 (1987). Another annotation states that 362. Email from Clara Rita Padilla, Executive Director, EnGendeRights, to Nile Park, the intent of this provision was to “prevent the State from adopting the doctrine in the Center for Reproductive Rights, supra note 311. US Supreme Court decision of Roe v. Wade …. [t]he understanding is that life begins at 363. Health Sector Reform Agenda, supra note 201, at iii–iv; Philippine Management conception, although the definition of conception can be a matter for science.” Program Directional Plan, 2001–2004, supra note 225, at 32. 398. United Nations, Abortion Policies: A Global Review, supra note 302, at 34. 364. 2002 Family Planning Survey, supra note 317, at 31. 399. Revised Penal Code, No. 3815, arts. 76, 258 (1930) (Phil.). 365. USAID, Mission in the Philippines, USAID/Philippines Strategy Fiscal Year 400. Id. arts. 76, 256(3). 2005–2009, supra note 247, at 10 (2004), http://www.usaid-ph.gov/Documents/USAID 401. The Medical Act of 1959, Republic Act No. 2382, art. III, § 24 (1959) (Phil.); The %20Phils.%20Strategy%20(Public)2005-2009.doc (Mar. 14, 2005). Philippine Midwifery Act of 1992, Republic Act No. 7392, art. III, § 25 (1992) (Phil.); 366. Philippine NGO Council on Population, Health and Welfare, Inc. An Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical (PNGOC), Program Thrusts (2005), http://www.pngoc.com/about_03.htm (last Education in the Philippines and of Other Purposes, Republic Act No. 5921, act. III, § 13 visited May 13, 2005). (1969) (Phil.). 367. Id. 402. Delisting of Levonorgestrel 750mcg. (Postinor) from Bureau of Food and Drugs 368. Safe Motherhood Policy, Administrative Order No. 79 s. 2000, § 1 (2000) (Phil.). Registry of Drug Products, Bureau Circular No. 18 s. 2001 (2001) (Phil.); Email from 369. National Statistics Office & Department of Health, Republic of the Philip- Carolina S. Ruiz Austria, Program Development Consultant, Womenlead Foundation, pines, National Demographic and Health Survey 1998, § 8.6, at 128 (1999). The Inc., to Melissa Upreti, Center for Reproductive Rights (Sept. 16, 2005, 15:30:00 EST) large sampling error associated with these estimates does not provide conclusive evidence (on file with the Center for Reproductive Rights). that MMR has declined. Commission on Population & UNFPA, ICDP at 10: Phil- 403. Id. § I. ippines Country Report–Putting People First 24 (2004) [hereinafter Commission 404. Prevention and Management of Abortion and its Complications (PMAC) Policy, on Population & UNFPA, Putting People First]. The UNICEF, WHO, and UNFPA Administrative Order No. 45–B s. 2000 (2000) (Phil.). evaluated the data in 2000 and made adjustments to account for the well-documented 405. Id. § III. problems of underreporting and misclassification of maternal deaths. The adjusted 406. Id. § V. MMR is 200 per 100,000 live births. UNICEF, At a Glance: Philippines, http:// 407. Id. § V(1). www.unicef.org/infobycountry/philippines_statistics.html (last visited May 13, 2005). 408. Id. § V(2). 370. This figure was adjusted to 4100 based on the UNICEF, WHO & UNFPA data 409. Id. § V(3). analysis. UNICEF, WHO and UNFPA evaluated the data in 2000 and made adjust- 410. Id. tbl.1. ments to account for the well-documented problems of underreporting and misclassifi- 411. Id. cation of maternal deaths. The adjusted MMR is 200 per 100,000 live births. UNICEF, 412. Id. At a Glance: Philippines, supra note 369. 413. Id. 371. National Statistics Office, Vital Statistics, Time Series Data, Registered 414. Id. Maternal Deaths by Region, Province, and City of Residence: 1990–1998, http:// 415. EngenderHealth, Changing Policies and Attitudes: Postabortion Care in the Philip- www.census.gov.ph/data/sectordata/tsmd90s.htm (last modified Jan. 13, 2005). pines, Compass, 2003, at 1. 372. National Statistics Office, Deaths in the Philippines 2000, Explanatory 416. Id. at 1–4; Engender Health, Postabortion Care with Compassion in the Notes, http://www.census.gov.ph/data/sectordata/sr0366tx.html (last modified Feb. Philippines (2003), http://www.engenderhealth.org/itf/philippines.html (last visited 27, 2004). May 16, 2005). 373. National Demographic and Health Survey 2003, supra note 262, § 9.1.1, at 417. National Epidemiology Center, Republic of the Philippines, HIV/AIDS Registry– 117–119. However, only 72% of women in poverty receive prenatal care compared with Monthly Update, February 2005. 97% of wealthy women. Id. The majority of prenatal care was delivered through health 418. Id. professionals, usually nurses or midwives (49.5%), followed by doctors (38.1%). Id. 419. The Philippine AIDS Prevention and Control Act of 1998, Republic Act No. 8504 374. Id. § 9.2.1, at 125. (1998). 375. Id. § 9.2.2, at 126–127. The figure is derived from the sum of doctors (33.6%), nurses 420. Id. § 2(a). (1.1%) and midwives (25.1%) that assist delivery. Id. at 122 tbl.8.6. 421. Id. § 2(b)(1)–(4). 376. Id. at 131 tbl.9.12. 422. Id. § 2(c). 377. Government of the Philippines & UNFPA, Country Programme Action Plan 423. Id. § 2(d). between the Government of the Philippines and United Nations Population 424. Id. § 2(e). Fund, 2005–2009, § 18 (2005), http://www.unfpa.org.ph/6thCPCPAP/CountryProgra 425. Id. § 14. mmeActionPlan%20(CPAP).pdf (Mar. 21, 2005). 426. Id. § 43. The council was created by Executive Order No. 39. 378. Safe Motherhood Policy, Administrative Order No. 79 s. 2000, § 4 (2000) (Phil.). 427. Id. § 44. 379. Id. § 3. 428. Id. § 44(b). 380. Id. § 5(I). 429. Id. § 44(c). 381. Id § 5(I)(A). 430. Id. § 44(f). 382. Id. § 5(I)(B). 431. Id. § 45. 383. Id. § 5(I)(C). 432. Rules and Regulations Implementing the Philippine AIDS Prevention and Control PHILIPPINES PAGE 163

Act of 1998, Republic Act No. 8504, resol. 1, R. 4, § 26 (1999). 482. Id. § 20(2); Revised Penal Code, No. 3815, art. 70 (1930) (Phil.) (duration of arresto 433. Id. R. 4, §§ 31, 43(b). mayor). 434. Id. R. 4, § 27(a)–(g). 483. Adolescent and Youth Health (AYH) Policy, Administrative Order No. 34-A s. 2000, 435. Id. R. 4, § 28. §§ I–II (2000) (Phil.). The Department of Health adopts the World Health Organization 436. Id. R. 7, § 41. definitions of adolescent (10–19), youth (15–24), and young people (10–24). Id. § III(1). 437. Id. R. 7, §§ 43, 47. 484. Id. 438. Id. R. 7, § 45. 485. Id. § II. 439. Id. R. 8, § 36. 486. Id. § III(3). 440. Id. R. 8, § 47. 487. Id. § III(7). 441. Id. § 48. 488. Id. § III(10). 442. Id. R. 8, §§ 50–52. 489. Amendment to the Sub-sections 2,3,4,5 under Section III Providing for the Specific 443. Id. R. 8, § 53. Guidelines of AO # 34-A s. 2000, Adolescent and Youth Health Policy, Administrative 444. Id. Order No. 138-A s. 2000, No. 4 (2000) (Phil.). 445. The Anti-Rape Law of 1997, Republic Act. No. 8353, § 2 (1997) (Phil.); Revised 490. Adolescent and Youth Health (AYH) Policy, Administrative Order No. 34-A s. 2000, Penal Code, No. 3815, art. 266-B(6) (1930) (Phil.). § III(9) (2000) (Phil.). 446. Working draft of Women of the World: East and Southeast Asia, Philippines, sec. II.B. at 491. Department of Health, Republic of the Philippines, A Guidebook on Ado- 36 (peer reviewed by Dr. Junice L. Demeterio-Melgar, Likhaan, rec’vd May 10, 2005) (on lescent and Youth Health and Development Program 7; Id. Annex X Work Plan file with the Center for Reproductive Rights). 2001-2010, at 86-87. 447. Philippine National AIDS Council, Seizing the Opportunity: The 2000–2004 492. The baseline for this target is 7.2% in 1998, according to the National Demographic Medium Term Plan for Accelerating the Philippine Response to HIV/AIDS, ch. Health Survey. No other baselines were established for the remaining targets. Id. at 7. 3, § A(2) (2000). 493. Id. 448. Id. ch. 3, § A(4). 494. Philippine Management Program Directional Plan, 2001–2004, supra note 225, 449. Id. ch. 3, § A(6). at 58. 450. Id. ch. 3, § A(5). 495. Id. at 60–62. 451. Id. ch. 3, § A(8). 496. Commission on Population & UNFPA, Putting People First, supra note 369, at 452. Id. ch. 3, § A(9). 37; Philippine Management Program Directional Plan, 2001–2004, supra note 225, 453. Department of Health, Office of the Secretary, Administrative Order No. 16-A at 56. Series 1997 Guidelines for the Management of Asymptomatic Women with RTIs and 497. Commission on Population & UNFPA, Putting People First, supra note 369, at 50; STD 1. Philippine Management Program Directional Plan, 2001–2004, supra note 225, at 53; 454. Id. at 2-3. Republic of the Philippines, Department of Education, Historical Perspective of the 455. The Philippine AIDS Prevention and Control Act of 1998, Republic Act No. 8504, Philippine Educational System, http://www.deped.gov.ph/about_deped/history.asp (last art. 1, §§ 4–9 (1998). visited Sept. 21, 2005). 456. Id. art. 1, § 4. 498. Philippine Management Program Directional Plan, 2001–2004, supra note 225, 457. Id. art. 1, § 10. at 53. 458. Department of Health, Republic of the Philippines, et al., The 2001 Techni- 499. The project is the collaboration of the Philippine Center for Population and Devel- cal Report of the National HIV/AIDS Sentinel Surveillance System 3 (2001). opment and the Bureau of Secondary Education. Commission on Population & 459. Id. at 2–3. UNFPA, Putting People First, supra note 369, at 50; Philippine Management Pro- 460. Id. at 3. gram Directional Plan, 2001–2004, supra note 225, at 53–54. 461. Id. at 9. 500. This program is produced in partnership with Johnson and Johnson and the ASEA 462. Id. at 2, 4. Consumer Group of Companies. Commission on Population & UNFPA, Putting 463. Philippine Council for Health Research and Development, Department People First, supra note 369, at 51. of Science and Technology, National Guidelines for Biomedical/Behavioral 501. This program is implemented through the Department of Education and Kimberly Research 18 (2000), http://www.nus.edu.sg/irb/Articles/PCHRD_DOST_ Clarke Philippines. Id. at 51. NEC%20Guidelines.pdf (last visited May 17, 2005). 502. Id. at 50. 464. Id. 503. Varga & Zosa-Feranil, supra note 345, at 19. 465. Id. 504. International Council on Management of Population Programs, Catalogue 466. Id. of Practices, Development and Family Life Education for Youths in Davao, 467. 2002 Philippine Statistical Yearbook, supra note 205, 1-19. Under WHO guide- http://www.icomp.org.my/SSouth/Inven/NewInven/Devfledu-Davao.htm (last visited lines, adolescents are people aged 10–19. May 19, 2005). See also Family Planning Organization of Philippines, Services and 468. National Demographic and Health Survey 1998, supra note 369, at 45 tbl.3.10. Programs, http://www.fpop.org.ph/fpop/programs.htm (last visited May 19, 2005). The 2003 National Demographic and Health Survey shows that among young women 505. International Council on Management of Population Programs, Catalogue aged 15–24, 23.3% in urban areas and 31.3% in rural areas have begun childbearing. of Practices, Development and Family Life Education for Youths in Davao, supra National Demographic and Health Survey 2003, supra note 262, at 51 tbl.4.9. note 504. See also Family Planning Organization of Philippines, supra note 504. 469. National Statistics Office, Vital Statistics Report 1998 (2002), page 24. Of the 1,579 506. Foundation for Adolescent Development, All About FAD, http://www.teen- reported cases of maternal death in 1998, 99 (6.3%) were girls aged 15-19. fad.ph/about/fadinc/about.htm (last visited May 19, 2005); Commission on Popula- 470. Press Release, 2002 Young Adult Fertility and Sexuality Study (YAFS 3), The Youth tion & UNFPA, Putting People First, supra note 369, at 50. are Not Alright (Dec. 12, 2002), http://www.yafs.com/downloads/youth.pdf (last visited 507. Foundation for Adolescent Development, supra note 506; Commission on May 17, 2005). The Young Adult Fertility and Sexuality Survey refers to those between Population & UNFPA, Putting People First, supra note 369, at 50. 15–24 years old as young adults. 508. Commission on Population & UNFPA, Putting People First, supra note 369, at 471. Press Release, 2002 Young Adult Fertility and Sexuality Study (YAFS 3), 4.9 million 50. young adults have engaged in premarital sex (Feb. 12, 2003), http://www.yafs.com/ 509. Philippine NGO Council on Population, Health and Welfare, Inc. (PNGOC), downloads/pms.pdf (last visited May 17, 2005). PNGOC Membership Directory, http://www.pngoc.com/member.htm (last visited 472. Press Release, 2002 Young Adult Fertility and Sexuality Study (YAFS 3), Filipino May 19, 2005). youth think they have immunity from HIV/AIDS (Nov. 26, 2004), http://www.yafs. 510. Commission on Population & UNFPA, Putting People First, supra note 369, at 50. com/downloads/aids.pdf (last visited May 17, 2005). 511. Philippine Management Program Directional Plan, 2001–2004, supra note 225, 473. HIV/AIDS Registry– Monthly Update, February 2005, supra note 417, 2 fig.2. at 66 tbl.4. 474. Figures extrapolated from total HIV infections under age 29 (739) and number of 512. National Statistics Office, Government of the Philippines, 2000 Census of females in that group. Id. Population and Housing, http://www.census.gov.ph/census2000/c2khighlights_ 475. Working draft of Women of the World: East and Southeast Asia, Philippines, sec. II.B. at final.html (last visited May 19, 2005); Philippine Management Program Directional 39 (peer reviewed by Dr. Junice L. Demeterio-Melgar, Likhaan, rec’vd May 10, 2005) (on Plan, 2001–2004, supra note 225, at 66 tbl.4. file with the Center for Reproductive Rights). 513. National Demographic and Health Survey 2003, supra note 262, at 41 tbl.4.1. 476. Working draft of Women of the World: East and Southeast Asia, Philippines, sec. II.B. at 514. Philippine Management Program Directional Plan, 2001–2004, supra note 225, 39 (peer reviewed by Dr. Junice L. Demeterio-Melgar, Likhaan, rec’vd May 10, 2005) (on at 4. file with the Center for Reproductive Rights). 515. Id. at 4–5. 477. Phil. Const., art. II, § 13. 516. Id. at 5. 478. Id. art. XV, § 3(2). 517. Id. at 6. 479. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, 518. Id. at 7. Republic Act No. 7610, § 2 (1992) (Phil.). 519. Commission on Population & UNFPA, Putting People First, supra note 369, at 480. Id. § 19. 15; Philippine Management Program Directional Plan, 2001–2004, supra note 225, 481. Id. § 20(1). at 10. PAGE 164 WOMEN OF THE WORLD:

520. Commission on Population & UNFPA, Putting People First, supra note 369, at 562. Exec. Order No. 208, Further Defining the Composition, Powers and Functions of 16; Philippine Management Program Directional Plan, 2001–2004, supra note 225, the National Commission on the Role of Filipino Women §§ 2–3 (1994) (Phil.); Presi- at 10. dential Decree No. 633. 521. Philippine Management Program Directional Plan, 2001–2004, supra note 225, 563. Exec. Order No. 273, Approving and Adopting the Philippine Plan for Gender- at 10. Responsive Development, 1995 to 2025, § 2.1 (1995). 522. Id. at 11. 564. Id. § 2.2. 523. Exec. Order No. 188, Transferring the Commission on Population From the Nation- 565. Id. § 3. al Economic Development Authority to the Office of the President and then Placing it 566. Exec. Order No. 208 § 5.1. Under the Control and Supervision of the Department of Health (2003) (Phil.). 567. Aurora Javate-De Dios, National Commission on the Role of Filipino Women 524. Population Act of the Philippines, Republic Act No. 6365, § 3 (1971). (NCRFW): Making Government Work for Gender Equality (2003), http://www. 525. Revised Population Act of the Philippines, Presidential Decree No. 79, § 2 (1972); moge.go.kr/board/eng_kwdi_report/data/Phlippines%20report.doc (Nov. 12, 2003) Amending the Revised Population Act of 1971, Presidential Decree No. 166 (1973); Fur- (presented at the Regional Meeting of National Machineries for Gender Equality in the ther Amending Certain Sections of Presidential Decree No. 79 As Amended, Otherwise Asian and Pacific Region: Towards a Forward Looking Agenda (Nov. 12–14, 2003)). Known as Revised Population Act of the Philippines, Presidential Decree No. 803, §§ 568. The Coordinating Committee on Human Rights is chaired by the Department 1–3 (1975); Amending Certain Sections of Presidential Decree No. 79, As Amended, of Foreign Affairs and is divided into two working groups: one on Civil and Political Otherwise Known as the Revised Population Act of the Philippines, Presidential Decree Rights and the other on Economic, Social and Cultural Rights. No. 1204, §§ 1–6 (1977). 569. Phil. Const. art. XIII; Exec. Order No. 163, Declaring the Effectivity of the Cre- 526. Commission on Population, Republic of the Philippines, Organizational ation of the Commission on Human Rights as Provided for in the 1987 Constitution, Structure, http://www.popcom.gov.ph/about_us/org_structure.html (last visited May Providing Guidelines for the Operation Thereof, and for Other Purposes (1987) (Phil.). 19, 2005). 570. Phil. Const. art. XIII, § 18(7); Exec. Order No. 163 § 3(7). 527. Id. 571. Creating the Inter-Agency Coordinating Committee on Human Rights, Adminis- 528. Exec. Order No. 123, Reorganizing the Ministry of Transportation and Communi- trative Order No. 370, § 1 (1997) (Phil.). cations Defining its Powers and Functions and for Other Purpose (1987) (Phil.); Philip- 572. Id. § 2. pine Management Program Directional Plan, 2001–2004, supra note 225, at 5. 573. The Women in Development and Nation Building Act, Republic Act No. 7192, § 529. The department’s leadership was heavily influenced by the Roman Catholic Church 4(4) (1992) (Phil.). and did not believe that family planning was a priority program. Government funding 574. Enjoining Different Agencies to Promote Gender Concerns in the Generation of for family planning service delivery was thus effectively frozen from 1986 to 1988. Philip- Statistics, National Statistical Coordination Board Resolution No. 8 s. 1994 (1994) (Phil.), pine Management Program Directional Plan, 2001–2004, supra note 225, at 5. http://www.nscb.gov.ph/resolutions/1994/8.asp (Oct. 12, 1994). 530. Id. at 5, 28. 575. House Bill 2051, 12th Congress, 1st Session. 531. Exec. Order No. 408, Placing the Commission of Population Under the Control and 576. Id. Supervisions of the Office of the President (1990) (Phil.). 577. Anti-Discrimination Act, House Bill No. 6416 (2004) (Phil.). 532. Executive Order No.476, August 14, 1991. 578. Anti-Discrimination Act, House Bill No. 2784 (2004) (Phil.). 533. Exec. Order No. 188, Transferring the Commission on Population From the Nation- 579. There is no similar provision for children of Filipino fathers. Phil. Const., art. IV, al Economic Development Authority to the Office of the President and then Placing it § 1. Under the Control and Supervision of the Department of Health § I (2003) (Phil.). 580. Id. art. XV, § 1. 534. Id. 581. Id. art. XV, § 2. 535. Commission on Population, Board Resolution No. 02 S. 1993 Operational Guide- 582. Id. art. XV, § 3(1). lines for a Decentralized Implementation of the Population Program. 583. The Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083, 536. Commission on Population, Republic of the Philippines, Mission, Vision & art. 13(1) (1977). Goals, http://www.popcom.gov.ph/about_us/mission.html (last visited May 19, 2005). 584. Id. art. 13(1)–(2). 537. Id. 585. The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, § 15 (1997) 538. Phil. Const. art. III, § 1. (Phil.). 539. Id. art. II, § 11. 586. Exec. Order No. 209, The Family Code of the Philippines, art. 33 (1987). 540. Id. art. II, § 14. 587. Id. art. 1. 541. The Women in Development and Nation Building Act, Republic Act No. 7192, § 2 588. Id. art. 2. (1992) (Phil.). 589. An authorized official refers to members of the judiciary, religious leaders (priest, 542. Id. § 2(1). rabbi, etc.), military commanders, and consular officials. Id. arts. 7, 10. 543. Id. § 2(2). 590. Id. art. 3. 544. Id. § 2(3). 591. Id. art. 4. 545. Id. § 5. 592. Id. art. 5. 546. Id. § 6. 593. Id. art. 14. 547. Id. § 7. 594. Id. art. 45(1). 548. Id. § 8. 595. Id. art. 15. 549. The act pertains to Indigenous Cultural Communities and Indigenous Peoples. The 596. Even if only one party of the intended marriage requires parental consent, both Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, § 26 (1997) (Phil.). parties must undergo marriage counseling. Id. art. 16. The Mandatory Marriage Coun- 550. Id. seling Act is currently undergoing deliberations at the House of Representatives which 551. Id. § 26, para. 2. would mandate counseling for all couples intending to marry. An Act Amending Article 552. Creation of Inter-Agency Committee on Gender Statistics, National Statistical 16 Of Executive Order No. 209 As Amended By Executive Order No. 227, Otherwise Coordination Board Memorandum Order No. 003 s. 2002 (2002), http://www.nscb.gov. Known As The Family Code Of The Philippines, Making It Mandatory For Couples To ph/aboutus/board/memoOrders/2002/3.asp (Jan. 4, 2002). Undergo Counseling Prior To The Issuance Of A Marriage License, House Bill No. 216 553. Id. (2004) (Phil.). 554. Commission on Population & UNFPA, Putting People First, supra note 369, at 597. Exec. Order No. 209, The Family Code of the Philippines, art. 16 (1987). 4, 42–43. 598. Id. art. 34. 555. Id. at 42. 599. Id. art. 68. 556. International Labour Organization, Equal Employment Opportunities for 600. Id. art. 195. Support comprises everything necessary for sustenance, dwelling, cloth- Women and Men, National Guidelines in Philippines- Project Development, ing, medical attendance, education, and transportation, keeping with the financial capac- http://www.ilo.org/public/english/employment/gems/eeo/guide/philip/aware.htm ity of the family. Id. art. 194. (last modified June 20, 2002). 601. The Civil Code of the Philippines, Republic Act No. 386, arts. 19–21 (1949). 557. Exec. Order No. 273, Approving and Adopting the Philippine Plan for Gender- 602. Exec. Order No. 209, The Family Code of the Philippines, art. 69 (1987). Responsive Development, 1995 to 2025, § 1 (1995). 603. Id. art. 70. 558. National Commission on the Role of Filipino Women, Framework Plan for 604. Id. art. 71. Women 2 (2003) [hereinafter Commission on the Role of Filipino Women, Frame- 605. Id. art. 73. work Plan]. 606. Id. art. 35(4). Revised Penal Code, No. 3815, art. 349 (1930) (Phil.). 559. Id. at iv, 3, 8; Email from Elizabeth Pangalangan, to Nile Park, Center for Reproduc- 607. Exec. Order No. 209, arts. 37–38. tive Rights (May 23, 2005, 23:18:00 EST) (on file with the Center for Reproductive 608. Revised Penal Code art. 333. Rights). 609. Id. arts. 76, 333, para. 2. 560. National Economic and Development Authority (NEDA) Board Resolution No.35 610. Id. art. 334. s.1992, Approving the Implementing Rules and Regulations of R.A. 7192 (Women in 611. Id. arts. 76, 334. Development and Nation Building Act), Rule II, b(2). 612. An Act Repealing Articles 333 and 334 and Amending Article 344 Of Act 3815, As 561. General Appropriations Act of 1998, Republic Act No. 8522, § 28 (1998) (Phil.). Amended, Otherwise Known As The Revised Penal Code, And Defining The Crime PHILIPPINES PAGE 165

Of Marital Infidelity, House Bill No. 334 (2004). This bill is currently pending in the (2001), http://www.stanford.edu/group/ISSU/about_islam/articles_hussein/node21. House of Representatives which seeks to correct the disparity between treatment of hus- html#SECTION000210000000000000000 (Nov. 13, 2001); The Code of Muslim Per- bands and wives in the matter of marital infidelities. sonal Laws of the Philippines, Presidential Decree No. 1083, art. 48 (1977). 613. Exec. Order No. 209, The Family Code of the Philippines, arts. 1–2 (1987). 656. The Code of Muslim Personal Laws of the Philippines art. 48. 614. The Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083, 657. Id. art. 15 (1977). 658. Id. art. 49. The “prescribed acts of imprecation” are procedures husbands and wives 615. Id. art. 16(1). must follow in a divorce by li’an. It involves vowing four times to the truth of one’s tes- 616. Shari’a District Court is a Court of Muslim Law. Id. art. 16(2). timony and at the fifth vowing invokes the curse of Allah. Hussein Al-Hussein, supra 617. Id. art. 16(3)(1977). note 655. 618. Id. art. 34(1). 659. The Code of Muslim Personal Laws of the Philippines art. 50. 619. Id. art. 35. 660. Id. art. 51. 620. The wife “may purchase things…and the husband shall be bound to reimburse the 661. Id. expenses, if he has not delivered the proper sum.” Id. art. 36(1). 662. Id. art. 52. 621. Id. art. 67(1). 663. Id. art. 53. 622. Id. art. 36. 664. Id. art. 54(a). 623. Id. art. 27. 665. Id. arts. 28–29(1). Where it is indisputable that the marriage was not consummated 624. The prohibition on marriage by reason of fosterage applies to nursemaids and their when the divorce was effectuated, no idda is required. Id. arts. 29(3), 56–57. charges, and persons related by fosterage within the third degree. Id. art. 23–26. 666. Id. arts. 28–29(1), 57(1)(c). 625. Pending bill introduces divorce as an option for couples and lists five grounds for 667. Id. art. 182. divorce. An Act Introducing Divorce in the Philippines, Amending for the Purpose Title 668. Id. art. 67. II, Articles 55 to 66 Inclusive and Article 26 of Executive Order No. 209, as Amended, 669. Id. Otherwise Known as The Family Code of the Philippines, and Repealing Article 36 of 670. Id. the Same Code, and For Other Purposes, House Bill No. 4016 (2005) (Phil.). 671. Id. art. 70. 626. Exec. Order No. 209, The Family Code of the Philippines, art. 35(3) (1987). 672. Id. art. 54. 627. Id. art. 37. 673. Exec. Order No. 209, The Family Code of the Philippines, art. 221 (1987). 628. Exec. Order No. 209, The Family Code of the Philippines, art. 36 (1987), amended 674. The Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083, by Exec. Order No. 227, Amending Executive Order No. 209, Otherwise Known as the art. 71 (1977). “Family Code of the Philippines § 2 (1987) (Phil.). 675. Exec. Order No. 209 art. 213. The law does not specify whether the separation 629. Exec. Order No. 209, The Family Code of the Philippines, art. 35(1) (1987). has to be a legal separation and parents who are in fact separated are covered within its 630. Martial consent through violence, intimidation or fraud is also punishable by provisions. Nerissa Z. Perez v. The Court of Appeals and Ray C. Perez, G.R. No. 118870 imprisonment. Revised Penal Code, No. 3815, arts. 71, 350 (1930) (Phil.). (1996) (Phil.). 631. Exec. Order No. 209, The Family Code of the Philippines, art. 45 (1987). Grounds 676. Exec. Order No. 209 art. 63. for annulment in the Family Code are similar to those in Article 85 of the Civil Code. 677. The Civil Code of the Philippines, Republic Act No. 386, art. 363 (1949) (Phil.) 632. Id. art. 45(3). (repealed by the Family Code of 1987); Rules of Court of the Philippines, Special Pro- 633. Id. art. 46(4). However, misrepresentation of character, health, rank, fortune or ceedings, R. 99, § 6 (Phil.). Custody of children with disabilities or under the age of 7 is chastity does not constitute fraud for the purpose of annulling a marriage. Id. art. 46. automatically given to the mother, unless there are compelling reasons to do otherwise. 634. Id. arts. 52–53. The absolute nullity of a previous marriage may be invoked for Anti-Violence Against Women and Their Children Act of 2004, Republic Act No. 9262, purposes of remarriage; proof of the nullity of the prior marriage can only be based on a § 28 (2004) (Phil.). final judgment declaring the previous marriage void. Id. art. 40. 678. Nerissa Z. Perez v. The Court of Appeals and Ray C. Perez, G.R. No. 118870 (1996) 635. Exec. Order No. 209, The Family Code of the Philippines, art. 26 (1987), amended (Phil.) (citing Medina v. Makabali, G.R. No. L-26953 (1969) (Phil.)). by Exec. Order No. 227, Amending Executive Order No. 209, Otherwise Known as the 679. Id. (citing Sy v. Funa, CA G.R. No.122117 (Phil.)). “Family Code of the Philippines § 1 (1987). 680. Id. (citing Cervantes v. Fajardo, G.R. No. 79955 (1989) (Phil.)). 636. Since the Family Code does not provide for divorce, a divorced woman refers to any 681. Id. (citing I.A. Tolentino, Commentaries and Jurisprudence on the Civil Code woman whose marriage has been annulled or dissolved, who is legally separated from her of the Philippines 609 (1990)). spouse or where one spouse is a foreign citizen, and has obtained a divorce in a foreign 682. Id. (citing Sy v. Funa, CA G.R. No.122117 (Phil.)). court. Revised Penal Code, No. 3815, art. 351 (1930) (Phil.). 683. Id. 637. Id. 684. Nerissa Z. Perez v. The Court of Appeals and Ray C. Perez, G.R. No. 118870 (1996) 638. Id. (Phil.). 639. An Act Abolishing the 301 Days Criminal Prohibition to Remarry and Allowing 685. This law covers physical, sexual, psychological violence and economic abuse by any the Remarriage of a Widow or a Separated Woman Forty Days After the Death of Her person against his wife, former wife, women with which the accused is in a sexual rela- Husband or the Annulment or Dissolution of Her Previous Marriage, Amending for the tionship, or the mother of his child/children. Anti-Violence Against Women and Their Purpose Article 351 of Act No. 3815, as Amended, Otherwise Known as the “Revised Children Act of 2004, Republic Act No. 9262, § 28 (2004) (Phil.). Penal Code,” House Bill No. 3473 (2004) (Phil.). 686. In the mother’s absence, custody is awarded to the maternal grandmother, paternal 640. Exec. Order No. 209, The Family Code of the Philippines, art. 55 (1987). grandmother, sisters and aunts and only in their absence is custody granted to fathers and 641. Id. art. 63(1). other paternal relatives. The Code of Muslim Personal Laws of the Philippines, Presiden- 642. Absolute community property consists of all property owned by the spouses at the tial Decree No. 1083, art. 78(1) (1977). time of marriage and acquired thereafter. Id. art. 91. Exclusions to community property 687. Id.. include those “acquired during the marriage by gratuitous title…unless expressly pro- 688. Id. art. 78(2). vided by the donor…,” “for personal and exclusive use,” individually acquired prior to 689. Phil. Const., art. III, § 1. the marriage, or the fruits or income therefrom. Id. art. 92. 690. Id. art. XIII, § 1. 643. Id. art. 198. 691. Id. art. XIII, § 1, para. 2. 644. Id. 692. The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, § 2(b) (1997) 645. Id. (Phil.). 646. Id. arts. 201–202. 693. Id. §§ 25–27. 647. The Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083, 694. Exec. Order No. 209, The Family Code of the Philippines, art. 74 (1987). art. 45 (1977). 695. Id. art. 75. 648. Id. 696. Id. arts. 75, 91. See art. 92 for property not included as “community property.” 649. Id. art. 46. The repudiation must be during her non-menstrual period (tuhr), during 697. Id. art. 105. which time he has abstained from any carnal relation with her. 698. Id. art. 109. 650. Idda is the waiting period prescribed for a widowed or divorced woman which will 699. Id. art. 117. enable her to remarry. Id. art. 56. The Idda is three months for divorced women, four 700. Id. arts. 96, 124. months and ten days for widowed women and upon delivery if she is pregnant. Id. art. 701. Id. arts. 96, 124. 57(1). 702. Id. art. 147, para. 1. 651. In such cases, there is no need for a new contract of marriage. Id. arts. 46, 56. 703. Id. art. 147. 652. Id. art. 46. 704. Id. 653. Id. art. 47. 705. Id. art. 147, para. 2. 654. Id. art. 48. 706. Id. art. 147, para. 4. 655. The acts of redemption, or “prescribed expiation” involve the freeing of a slave, fast- 707. Id. art. 148. ing during the daytime of two consecutive lunar months or feedings sixty needy people 708. Id. arts. 225–226. Parental authority (including guardianship over the minor’s if he is unable to free a slave or fast. Hussein Al-Hussein, Marital Relations in Islam property) is granted to the mother (or appointed legal guardian). Id. art. 176. The Family PAGE 166 WOMEN OF THE WORLD:

Code provides that the age of majority commences at the age of 18. Id. art. 234. 748. The Women in Development and Nation Building Act, Republic Act No. 7192, § 5 709. The Civil Code of the Philippines, Republic Act No. 386, bk. III, tit. IV (1949) (1992) (Phil.). (Phil.). 749. Id. § 5(1)–(2). 710. The Code of Muslim Personal Laws of the Philippines, Presidential Decree No. 1083, 750. An Act Providing Assistance to Women Engaging in Micro and Cottage Business art. 38 (1977). Enterprises, and for Other Purposes, Republic Act No. 7882, §§ 3–4 (1995) (Phil.). 711. Id. arts. 36(4), 40. 751. Women with an existing business are eligible for loans only if they have a good track 712. Id. art. 42. record in sales. Id. § 2. 713. Id. art. 36(2). 752. Id. § 7. 714. Id. arts. 111–112. Inheritance includes all properties movable and immovable, ances- 753. Asian Development Bank, Sociolegal Status of Women in Indonesia, Malay- tral, onerous or acquired through gratuitous title, and all transmittable rights and obliga- sia, Philippines, and Thailand 75 (2002). tions at the time of death. Id. art. 90. 754. National Commission on the Role of Filipino Women, Making Financing 715. Id. art. 117(1). Projects Work for Women 18 (2001). 716. Mutual rights of inheritance between divorced husbands and wives remain during 755. Figures reflect simple literacy rates of the population over 10 years of age in 1994. the idda, while the wife’s right of inheritance to her husband’s estate extends beyond the 2002 Philippine Statistical Yearbook, supra note 205, 10-16 tbl.10.11. idda if the husband sought the divorce while suffering from a terminal illness. Id. art. 756. National Statistical Coordination Board, Women and Men Factsheet, 96(1)–(2). http://www.nscb.gov.ph/stats/gender/statwatch03March05.asp (last modified Mar. 4, 717. Comprehensive Agrarian Reform Law of 1988, Republic Act No. 6657, § 40(5) (1988) 2005). (Phil.). 757. 2002 Philippine Statistical Yearbook, supra note 205, 10-16 tbl.10.11; Abdulgani A. 718. 2002 Philippine Statistical Yearbook, supra note 205, 11-11. Salapuddin, Enhancing Participation in Promoting Access and Equity to Higher 719. Id. 11-9. Education for Muslim Filipinos (on file with the Center for Reproductive Rights). 720. Id. 11-11. 758. Gender differentials extrapolated from statistics on enrollment by discipline group, 721. Id. 11-17. sector and gender. Commission on Higher Education, Republic of the Philippines, 722. Maria Cynthia Rose Banzon Bautista, Migrant Workers and Their Environ- Higher Education Statistical Bulletin 11 tbl.5 (2002). ments: Insights from the Filipino Diaspora (2002), http://www.unu.edu/hq/japa- 759. Commission on the Role of Filipino Women, Framework Plan, supra note 558, nese/gs-j/gs2002j/shonan18/Bautista4abstE.pdf (last visited May 21, 2005). at 15 (2003). 723. Philippine Overseas Employment Administration, Republic of the Philip- 760. Phil. Const. art. XIV, § 1. pines, Stock Estimates of Overseas Filipinos (as of Dec. 2003), http://www.poea.gov. 761. Id. art. XIV, § 2(2). ph/docs/ofwStock2003.doc (last visited May 21, 2005). 762. Id. art. XIV, § 2(3)–(5). 724. Philippine Overseas Employment Administration, Republic of the Philippines, 763. The Free Public Secondary Education Act of 1988, Republic Act No. 6655, § 2 Annual Report 2004, at 9 (2005), http://www.poea.gov.ph/AR2004/AnnualReports/ (1988). AR2004.pdf (last visited May 21, 2005). 764. Education Act of 1982, No. 232, §§ 2, 6, 8–18 (1982) (Phil.). 725. Service sector includes domestic helpers, household workers, caretakers, waiters and 765. Id. §§ 33, 45. bartenders etc. A significant number of females hired in professional/technical positions 766. An Act Providing Assistance to Women Engaging in Micro and Cottage Business are health care workers. Id. at 9. Enterprises, and for Other Purposes, Republic Act No. 7882, § 5 (1995) (Phil.). 726. Phil. Const., art. XIII, § 3, para. 1. 767. Despite the constitutional guarantee, access to higher education has been particularly 727. Id. art. XIII, § 3, para. 2. difficult for Muslim Filipinos and indigenous peoples, many of whom live in poverty. See 728. Id. Salapuddin, supra note 757, para. 3. 729. Id. art. XIII, § 14. 768. Salapuddin, supra note 757. Republic Act No. 1387 provides scholarships and grants 730. The Labor Code of the Philippines, Presidential Decree No. 442, arts. 135–136, to Muslim Filipino students. 138–139 (1974), amended by An Act Strengthening the Prohibition on Discrimination 769. The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, § 25 (1997) Against Women with Respect to Terms and Conditions of Employment, Amending for (Phil.). the Purposes Article 135 of the Labor Code, as Amended, Republic Act No. 6725, § 1 770. Education Act of 1982, No. 232, § 3 (1982) (Phil.). (1989) (Phil.). 771. Commission on Population & UNFPA, Putting People First, supra note 369, 731. Id. art. 135(a). at 27, 39. The DECS was formerly known as the Ministry of Education and Culture. 732. Id. art. 135(b). Philippine Management Program Directional Plan, 2001–2004, supra note 225, at 53. 733. The Labor Code of the Philippines, Presidential Decree No. 442, art. 136 (1974). 772. See Department of Education, Republic of the Philippines, Population Edu- 734. Id. art. 137. cation Curriculum (1996). 735. Philippine Telegraph and Telephone Company v. National Labor Relations Com- 773. Id. at 1. mission and Grace de Guzman, G.R. 118978, § 3 (1997) (Phil.). 774. Id. at 1–14. 736. Id. § 5. 775. Id. at 15–19. 737. Night work generally refers to work between 10 p.m. and 6 a.m. The Labor Code 776. Id. at 20–22. of the Philippines, Presidential Decree No. 442, art. 130 (1974); Rules to Implement the 777. Philippine Management Program Directional Plan, 2001–2004, supra note 225. Labor Code, R. XII, §5 (1989) (Phil.). 778. Id. at 127. 738. The Labor Code of the Philippines, Presidential Decree No. 442, art. 131 (1974); 779. The program was authorized under Administrative Order No. 950. Philippine Rules to Implement the Labor Code, R. XII, § 5 (1989) (Phil.). Management Program Directional Plan, 2001–2004, supra note 225, at 53. See also 739. Social Security Act of 1997, Republic Act No. 8282 (1997) (Phil.). Varga & Zosa-Feranil, supra note 345, at 19. 740. Id. § 14-A, 14-A(d). The provisions are only valid if the female employee has paid 780. Revised Penal Code, No. 3815, art. 266-A(1) (1930) (Phil.), amended by The Anti- at least three monthly contributions to the social security system within the last year. Id. Rape Law of 1997, Republic Act No. 8353 (1997). Maternity Leave may be granted for deliveries, miscarriages, and/or complete abortions. 781. Rape is deemed to have occurred when the penis enters the labia of the vagina, or Rules to Implement the Labor Code, R. XII, §§ 7, 10 (1989) (Phil.). touches the external genitalia. Women’s Legal Bureau, Inc., Addressing Rape in the 741. Social Security Act of 1997 § 14-A. Employers that fail to provide maternity benefits Legal System: A Multidisciplinary Training Manual 108 (2001) (referencing People as stipulated in the Social Security Act are subject to criminal investigation initiated by v. Quiñanola, 306 SCRA 710 (1999), People v. Cabebe, 290 SCRA 543 (1998), and People the Social Security Commission, fines of P5000 to P20,000, and/or imprisonment of up v. De la Peña, 233 SCRA 753 (1994), as cited in People vs. Castromero, 280 SCRA 421 to 12 years. Id. § 28(e), (i). (1997)). 742. Civil Service Commission, Omnibus Rules Implementing Book V of the Adminis- 782. Revised Penal Code, No. 3815, art. 266-A(2) (1930) (Phil.), amended by The Anti- trative Code of 1987, R. XVI (1992) (Phil.). Rape Law of 1997, Republic Act No. 8353 (1997). 743. Civil Service Commission, Amendment to the Maternity Leave Rules under Rule 783. Communication with Institute for Social Studies and Action (ISSA), Women of the XVI of the Omnibus Rules Implementing Book V of the Administrative Code of 1987, World Report—Philippines (draft) (May 8, 2003) (on file with the Center for Reproduc- Resolution No. 021420, (Executive Order No. 292) (2002) (Phil.). tive Rights). 744. Delivery can either mean childbirth or miscarriage. The Paternity Leave Act of 1996, 784. Revised Penal Code, No. 3815, art. 266-C (1930) (Phil.), amended by The Anti-Rape Republic Act No. 8187, § 2 (1996) (Phil.). The Act was incorporated into the Omnibus Law of 1997, Republic Act No. 8353 (1997). Rules for Civil Service, Rules XVI, sec. 19 and sec. 20 on December 14, 1998. The provi- 785. Id. art. 266-C. sions specifically stated that married male employees with more than one wife are limited 786. Id. arts. 25, 70, 266-B. to four paternity leaves regardless of whichever wife gives birth. Id. § 19. 787. Id. art. 266-B, para. 4. 745. The Labor Code of the Philippines, Presidential Decree No. 442, art. 132 (1974); 788. Id. art. 266-B(2), (5)–(10). Rules to Implement the Labor Code, R. XII, § 14 (1989) (Phil.). 789. Id. art. 266-B(1). 746. The Labor Code of the Philippines, Presidential Decree No. 442, art. 134 (1974); 790. Revised Penal Code, No. 3815, art. 336 (1930) (Phil.). Rules to Implement the Labor Code, R. XII, § 11. 791. Anti-Violence Against Women and Their Children Act of 2004, Republic Act No. 747. Barangay-Level Total Development and Protection of Children Act, Republic Act 9262, § 6(a)–(f) (2004) (Phil.). No. 6972, § 3 (1990) (Phil.). 792. Id. § 6. Perpetrators are subject to the death penalty if the act(s) constitute attempt- PHILIPPINES PAGE 167

ed, frustrated or consummated parricide, murder or homicide. Id. § 6(a). Other penal- encompasses child prostitution and the action of any adult to coerce, influence, facilitate a ties, ranging from imprisonment of one month to 12 years, depending on severity of the child into prostitution and those who profit from such. Id. §§ 2, 5(a), (c). injury inflicted or the acts committed. Id. § 6(a)–(f). 839. Penalty for acts of lasciviousness is greater than the norm when the victim is under 793. An Act Strengthening Further the Right of Daughters Against Incestuous Rape by 12. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Penalizing Mothers Who Refrain From Proceeding Against the Father-Rapists or Toler- Republic Act No. 7610, § 5(b) (1992) (Phil.); Revised Penal Code, arts. 27, 335 (1930) ate Its Commission, House Bill No. 1715 (2001) (Phil.). (Phil.). 794. The Family Courts Act of 1997, Republic Act No. 8369, § 5(k)(1) (1997) (Phil.). 840. Special Protection of Children against Child Abuse, Exploitation and Discrimina- 795. Id. § 5(k)(2). tion Act, § 5(b) (1992) (Phil.); Revised Penal Code, No. 3815, arts. 76, 336 (1930) (Phil.). 796. Id. § 5(k). 841. Revised Penal Code, No. 3815, arts. 337–338 (1930) (Phil.). 797. Id. § 7. 842. Id. art. 337. 798. Intimate partners refer to a person with whom the perpetrator has or had an extend- 843. Id. arts. 76, 337. ed sexual, dating, or romantic relationship. Anti-Violence Against Women and Their 844. Special Protection of Children against Child Abuse, Exploitation and Discrimina- Children Act of 2004, Republic Act No. 9262, § 3(a), (e) (2004) (Phil.). tion Act, § 10(6) (1992) (Phil.); Revised Penal Code, No. 3815 (1930) (Phil.). 799. Id. § 3(a). 845. Revised Penal Code, No. 3815, art. 338 (1930) (Phil.). Deceit is usually interpreted as 800. Id. § 5(a)–(i). Being under the influence of alcohol, any illicit drug, or any other a promise of marriage, although a promise made after sexual intercourse or one made by mind-altering substance is not a defense under the Act. Id. § 27. a married man whom the victim knows to be married, is not considered deceitful. Rex 801. Id. §§ 8–23. Editorial Board. The Revised Penal Code of the Philippines, 133 (1986). 802. Id. §§ 3, 26. 846. Revised Penal Code, No. 3815, art. 338 (1930) (Phil.). 803. Id. § 28. 847. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, 804. Id. § 35(a)–(e). Republic Act No. 7610, § 5(a) (1992) (Phil.); Revised Penal Code, No. 3815, arts. 27, 76 805. Id. § 40. (1930) (Phil.). 806. Rape Victim Assistance and Protection Act of 1998, Republic Act No. 8505, § 3 848. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, (1998) (Phil.). Republic Act No. 7610, § 5(b) (1992) (Phil.). 807. Revised Penal Code, No. 3815, arts. 246–249, 262–266 (1930) (Phil.). 849. Id. § 5(c). 808. Exec. Order No. 209, The Family Code of the Philippines, art. 55(1) (1987). 850. Attempts to commit child prostitution include an unrelated person found alone with 809. The Anti-Sexual Harassment Act of 1995, Republic Act No. 7877, § 2 (1995) (Phil.). a prostituted child in a room where it is reasonable to infer that the child is about to be 810. Sexual harassment is also committed when the demanded sexual favor is a condition prostituted or sexually abused; or where a person is receiving services from a child in a for employment, education or training decisions, and where sexual advances create an sauna parlor and other similar establishments. Id. § 6. intimidating, hostile or offensive environment for the victim. Id. § 3. 851. “A penalty lower by two (2) degrees than …the consummated felony …shall be 811. Id. § 7. imposed.” Id. § 6, para. 2. See also Revised Penal Code, No. 3815, art. 52 (1930) (Phil.). 812. Id. § 6. According to the Revised Penal Code’s graduated scales, two degrees below reclusion 813. Id. § 5. perpetua is prison mayor. Id. arts. 61, 71, 76. 814. Civil Service Commission, Republic of Philippines, Administrative Disciplinary 852. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Rules on Sexual Harassment Cases, Resolution No. 01-940 (2001). Republic Act No. 7610, § 10(6) (1992) (Phil.). See also Revised Penal Code, No. 3815, arts. 815. Id. § 3. 340–341 (1930) (Phil.). 816. Id. § 54. 853. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, 817. Id. § 56. Republic Act No. 7610, § 7 (1992) (Phil.). 818. Saligan Women’s Unit, Sexual Harassment 3, http://www.salidumay.org/discus- 854. Attempts at child trafficking are punishable by penalties 2 degrees less than actual sions/articles/sexual-harassment.doc (last visited May 21, 2005). See Floride Dawa v. commitment of child trafficking, therefore, the penalty is prision correccional. Id. § 8. Judge Armando C. De Asa, A.M. No. MTJ-98-1144 (1998) (Phil.). 855. Id. § 8(a). 819. Most of the cases have resulted in dismissals or downgraded to a lower offense (i.e., 856. Id. § 8(d). a charge under the Revised Penal Code, art. 336 for an act of lasciviousness). Saligan 857. Id. § 8(c), (e). Women’s Unit, supra note 818, at 3. 820. Revised Penal Code, No. 3815, arts. 76, 341 (1930) (Phil.), amended by An Act Increasing the Penalty for White Slave Trade, Amending for the Purpose Article 341 of the Revised Penal Code, No. 186 (1982) (Phil.). 821. Anti-Violence Against Women and Their Children Act of 2004, Republic Act No. 9262, §§ 3(a), (c), 6 (2004) (Phil.). 822. Laws and Regulations Governing the Fight Against Prostitution in All Forms, House Resolution No. 00546 (2002) (approved on Second Reading on May 29, 2002 with Committee Report No. 00516 and referred to Committee on Rules). 823. The Anti-Prostitution Act, House Bill No. 03051 (2004) (Phil.). 824. The Anti-Prostitution Act of 2004, House Bill No. 02419 (2004) (Phil.); The Anti- Prostitution Act, House Bill No. 00520 (2004) (Phil.); The Anti-Prostitution Act of 2004, House Bill No. 02857 (2004) (Phil.). 825. Varga & Zosa-Feranil, supra note 345, at 14. 826. Id. 827. Id. 828. Anti-Trafficking in Persons Act of 2003, Republic Act No. 9208, §§ 3(a), 4–5 (2003) (Phil.). 829. Id. § 3(a). 830. Id. 831. Id. § 3(a), para. 2. “Children” refers to persons below 18 years of age or those over 18 but who are unable to fully take care of or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or conditions.” Id. § 3(b). 832. Id. § 10(a). 833. Id. § 10(b). 834. Id. § 17. 835. The penalty for a first offense is 6 months of community service and a fine of 50,000 pesos while the penalty for second and subsequent offenses is imprisonment of 1 year and a fine of 100,000 pesos. Id. § 11(a)–(b). 836. Id. § 20. 837. Id. §§ 16, 23–24. 838. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Republic Act No. 7610, §§ 2, 3(b)(1) (1992) (Phil.), amended by Republic Act No. 9231, An Act Providing for the Elimination of the Worst Forms of Child Labor and Affording Stronger Protection for the Working Child, Amending for this Purpose Republic Act No. 7610, as Amended, Otherwise Known as the “ Special Protection of Children Against Abuse, Exploitation and Discrimination Act” (2003) (Phil.). Under the Act, sexual abuse PAGE 168 WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 169 4. Thailand

Statistics

GENERAL Population

■ Total population (millions): 64.2.1

■ Population by sex (thousands): 32,333.0 (female) and 31,132.0 (male).2

■ Percentage of population aged 0–14: 23.2.3

■ Percentage of population aged 15–24: 17.8.4

■ Percentage of population in rural areas: 68.5 Economy

■ Annual percentage growth of gross domestic product (GDP): 3.7.6

■ Gross national income per capita: USD 2,190.7

■ Government expenditure on health: 3.1% of GDP.8

■ Government expenditure on education: 3.6% of GDP.9

■ Percentage of population below the poverty line: Information unavailable.

WOMEN’S STATUS

■ Life expectancy: 74.3 (female) and 67.3 (male).10

■ Average age at marriage: 23.5 (female) and 26.0 (male).11

■ Labor force participation: 65.0 (female) and 81.4 (male).12

■ Percentage of employed women in agricultural labor force: Information unavailable.

■ Percentage of women among administrative and managerial workers: 26.13

■ Literacy rate among population aged 15 and older: 95% (female) and 98% (male).14

■ Percentage of female-headed households: Information unavailable.

■ Percentage of seats held by women in national government: 9.15

■ Percentage of parliamentary seats occupied by women: 9.16

CONTRACEPTION

■ Total fertility rate: 1.90.17

■ Contraceptive prevalence rate among married women aged 15–49: 72% (any method) and 70% (modern method).18

■ Prevalence of sterilization among couples: 22.6% (total); 19.8% (female); 2.8% (male).19

■ Sterilization as a percentage of overall contraceptive prevalence: 30.6.20

MATERNAL HEALTH

■ Lifetime risk of maternal death: 1 in 1,100 women.21

■ Maternal mortality ratio per 100,000 live births: 44.22

■ Percentage of pregnant women with anemia: 57.23

■ Percentage of births monitored by trained attendants: 99.24

ABORTION

■ Total number of abortions per year: Information unavailable.

■ Annual number of hospitalizations for abortion-related complications: Information unavailable. PAGE 170 WOMEN OF THE WORLD:

■ Rate of abortion per 1,000 women aged 15–44: Information unavailable.

■ Breakdown by age of women obtaining abortions: Information unavailable.

■ Percentage of abortions that are obtained by married women: Information unavailable.

SEXUALLY TRANSMISSIBLE INFECTIONS (STIS) AND HIV/AIDS

■ Number of people living with sexually transmissible infections: Information unavailable.

■ Number of people living with HIV/AIDS: 570,000.25

■ Percentage of people aged 15–49 living with HIV/AIDS: 1.1 (female) and 2.0 (male).26

■ Estimated number of deaths due to AIDS: 58,000.27

CHILDREN AND ADOLESCENTS

■ Infant mortality rate per 1,000 live births: 18.28

■ Under ﬁve mortality rate per 1,000 live births: 19 (female) and 31 (male).29

■ Gross primary school enrollment ratio: 95% (female) and 99% (male).30

■ Primary school completion rate: Information unavailable.

■ Number of births per 1,000 women aged 15–19: 48.31

■ Contraceptive prevalence rates among married female adolescents: 40.5% (modern methods); 2.6% (traditional methods); 43.0% (any method).32

■ Percentage of abortions that are obtained by women younger than age 20: Information unavailable.

■ Number of children under the age of 15 living with HIV/AIDS: 12,000.33 LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 171

ENDNOTES

1. See United Nations Population Fund (UNFPA), The State of World Population 2005, at 112 (estimates for 2005). 2. See United Nations Population Fund (UNFPA), Country Profiles for Population and Reproductive Health: Policy Developments and Indicators 2003 (2003), http://www.unfpa.org/profile/default.cfm. [hereinafter UNFPA, Country Profiles]. 3. See The World Bank, World Development Indicators 2004, at 40 (2004), http:// www.worldbank.org/data/ (estimates for 2002). [hereinafter The World Bank]. 4. See UNFPA, Country Profiles, supra note 2. 5. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimates for 2003). 6. See The World Bank, supra note 3, at 184 (estimates for 1990-2002). 7. See The World Bank, World Development Indicators 2004: Data Query (2004), http://devdata.worldbank.org/data-query/ (statistical figure obtained through the Atlas method) (estimates for 2003). 8. See UNFPA, The State of World Population 2005, supra note 1, at 112. 9. See United Nations CyberSchoolBus, InfoNation: Government Education Expenditure (2004), http://www.un.org/Pubs/CyberSchoolBus/infonation/e_ infonation.htm (estimates for 1997). 10. See UNFPA, The State of World Population 2005, supra note 1, at 108. 11. See UNFPA, Country Profiles, supra note 2. 12. See Id. 13. See Social and Demographic Statistics Branch, United Nations Statistics Division, The World’s Women 2000: Trends and Statistics (2000) (estimate for 2003). 14. See UNFPA, Country Profiles, supra note 2. 15. See Save the Children, State of World’s Mothers 2004, at 38 (2004), http:// www.savethechildren.org/mothers/report_2004/images/pdf/SOWM_2004_final.pdf (estimate for 2004). 16. See United Nations Statistics Division, Millennium Indicators Database (2005), http://unstats.un.org/unsd/mi/mi_series_results.asp?rowId=557 (last updated Mar. 16, 2005) (estimate for 2005). 17. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimates for 2000-2005). 18. See Id. at 108. 19. See Engenderhealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002) (estimates for 1993). 20. See Id. at tbl. Supp. 2.5, at 56. (estimate for 1993). 21. See World Health Organization (WHO) et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA), 46 (2000) (estimate for 1995). 22. See UNFPA, The State of World Population 2005, supra note 1, at 108. 23. See Save the Children, supra note 15, at 38 (estimate for 1989-2000). 24. See UNFPA, The State of World Population 2005, supra note 1, at 112. 25. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., UNAIDS/World Health Organization (WHO) Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections – 2004 Update: Thailand 3 (2004), http://www.who.int/GlobalAtlas/PDFFactory/HIV/EFS_PDFs/EFS2004_ TH.pdf (estimate for 2003). 26. See UNFPA, The State of World Population 2005, supra note 1, at 108. 27. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., supra note 25. 28. See UNFPA, The State of World Population 2005, supra note 1, at 108. 29. See UNFPA, Country Profiles, supra note 2. 30. See UNFPA, The State of World Population 2005, supra note 1, at 112. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 31. See Id. 32. See Saroj Pachauri & K.G. Santhya, Reproductive Choices for Asian Adolescents: A Focus on Contraceptive Behavior, 28 Int’l Fam. Planning Persp. 186–195 (2002), http://www. agi-usa.org/pubs/journals/2818602.html (estimates for 1987). 33. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., supra note 25. PAGE 172 WOMEN OF THE WORLD:

he Kingdom of Thailand is situated in Southeast Asia stitution that upholds equality, liberty, and social justice can and borders Myanmar, Cambodia, Laos, Malaysia, the provide a sound basis for the realization of women’s human TAndaman Sea, and the Gulf of Thailand.1 rights, including their reproductive rights. Likewise, a politi- The unified kingdom of Thailand, known as Siam until cal system committed to democracy and the rule of law is 1939, was established in the mid-fourteenth century. Subse- critical to establishing an environment for advancing these quently, starting in the sixteenth century, Thailand engaged rights. The following section outlines important aspects of in a series of wars with its northeast neighbor, Burma (cur- the Thailand’s legal and political framework. rently known as Myanmar), and in the nineteenth century, A. THE STRUCTURE OF NATIONAL GOVERNMENT it began to fend off European powers. Though Thailand lost The Constitution of Thailand came into force on October territory in the east to France and in the south to Britain, 11, 1997.15 It establishes a democratically governed constitu- Thailand succeeded in maintaining its independence and is tional monarchy and declares itself to be the supreme law of the only Southeast Asian country that was not colonized by the state16 from which the power of the three branches of European powers.2 government—executive, legislative, and judicial—is derived. Until 1932, Thailand was governed by a system of absolute Thailand is divided into 76 provinces.17 The constitution monarchy, but it became a constitutional monarchy that year establishes sovereignty in the people.18 after a “bloodless revolution” that was organized by a group Executive branch of civil servants and army officers with the support of army The executive branch consists of the king, the prime min- units in the Bangkok area.3 During World War II, Thailand ister, the Council of Ministers, and the Privy Council.19 The was occupied by Japan after the Thai prime minister signed king serves as the head of state and the head of the Thai armed a mutual defense pact with Japan.4 However, in 1944, the forces.20 The king exercises power in accordance with consti- prime minister was forced out of office and replaced by a tutional provisions.21 He exerts powerful informal influence, civilian government.5 but has not yet used his constitutionally mandated power to In 1992, after a series of military governments, civilian veto legislation or adjourn the legislative branch.22 The king authorities replaced the military. Subsequently, there have may appoint a regent in the event of his absence or incapacity been five national multiparty elections, which have trans- to perform his functions.23 ferred power to successive governments through peaceful, The prime minister is the head of government and is democratic processes.6 appointed from among the members of the House of Rep- In 2002, the total population was 62 million,7 with resentatives by the king.24 The appointment of the prime approximately 50.8% being female.8 The ethnic composition minister must be approved by a vote of more than one-half of Thailand consists of 75% Thai, 14% Chinese, and 11% oth- the total membership of the House of Representatives.25 The er.9 According to 1991 statistics on religious affiliation, 95% king may appoint no more than 35 ministers who constitute of Thais are Buddhist, 3.8% Muslim, 0.5% Christian, 0.1% the Council of Ministers26 and are in charge of the administra- Hindu, and 0.6% other.10 The official language is Thai, but tion of state affairs.27 Each minister reports individually to the English is also widely taught,11 and there are numerous ethnic House of Representatives28 and collectively to the National and regional dialects.12 Assembly.29 The king has the prerogative to remove a minis- Thailand has been a member of the United Nations since ter from office upon the advice of the prime minister.30 1946.13 It is an active member of the Association of Southeast The constitution provides for the establishment of a Privy Asian Nations (ASEAN).14 Council.31 The Privy Council submits advice to the king

on matters pertaining to his functions, such as matters that I. Setting the Stage: require the king’s signature or sanction, including drafts of legislation, royal decrees, and appointments of high ofﬁcials; The Legal and Political petitions for clemency for convicted prisoners; and petitions Framework of Thailand regarding grievances submitted to the king by private citizens.32 The king can issue an emergency decree, which has Fundamental rights are rooted in a nation’s legal and political the force of an act, to maintain national or public safety or framework, as established by its constitution. The principles national economic security, or avert public calamity.33 He and goals enshrined in a constitution, along with the pro- also has the power to issue a royal decree that is not contrary cesses it prescribes for advancing them, determine the extent to existing laws; declare and lift martial law; declare war with to which these basic rights are enjoyed and protected. A con- THAILAND PAGE 173

the approval of the National Assembly; enter into a treaty consists of three regional and one Bangkok appellate court. with another country or international organization; and The Courts of First Instance handle both civil and criminal grant pardons.34 cases. The appointment and removal from office of a judge The king selects and appoints both the president of the of a Court of Justice, including the Supreme Court, must be Privy Council and no more than 18 of the councilors who sit approved by the Judicial Commission of the Courts of Justice on it.35 The Privy Council has a duty to report to the king before being tendered to the king.58 on all matters.36 The constitution also establishes an independent Con- Legislative branch stitutional Court,59 a military court,60 and administrative Legislative power rests with a bicameral parliament, known courts. The Constitutional Court is headed by the presi- as the National Assembly, consisting of the House of Repre- dent and 14 judges who are appointed by the king upon sentatives and the Senate.37 The House of Representatives is the advice of the Senate.61 The president and judges of the composed of 500 members38 who serve four-year terms.39 Constitutional Court serve nine-year terms.62 The Consti- One hundred representatives are elected on a party-list basis tutional Court determines the constitutionality of bills and and 400 are elected on a constituency basis.40 The Senate is laws63 and settles disputes on the powers of constitutional composed of 200 members who are elected by the people41 organs.64 The constitution also provides for a maximum and serve six-year terms.42 In 1999, only 6.6% of the seats in of three ombudspersons, who are appointed by the king the National Assembly were filled by women.43 The king has with the advice of the Senate; these officials serve six-year the prerogative to dissolve the House of Representatives for a terms and act on complaints against government officials.65 new election of its members.44 Administrative courts hear cases between a state party (e.g., Bills may be proposed by the Council of Ministers, mem- state agency or entity, local government organization, or bers of the House of Representatives,45 or a petition signed state official) and a private individual, or between state par- by a minimum of 50,000 eligible voters,46 but only members ties.66 Other courts include juvenile and family courts at the of the House of Representatives may introduce money bills central and provincial levels, and fiscal tribunals.67 The quo- with the endorsement of the prime minister.47 A member of rums in juvenile and family courts consist of two career and the House of Representatives may introduce a bill that his or two associate judges, with a quota for one female judge.68 her political party has approved and that has been endorsed Appeals to the judgments and orders of these courts go to by no fewer than 20 members of the House of Representa- the Courts of Appeal.69 tives.48 After the National Assembly approves the bill, the There is no law in Thailand that deals with legal aid ser- prime minister presents it to the king for signature within 20 vices, but legal aid is provided in both civil and criminal days.49 If the king returns the bill to the National Assembly cases under the Civil and Criminal Procedure Codes.70 A or refuses to assent within 90 days, then the National Assem- range of nongovernmental organizations (NGOs) also fill bly may reaffirm the bill with votes of no fewer than two- some of the need for free legal work. The Women Lawyers thirds the total number of members of both houses.50 After- Association of Thailand provides legal aid services to protect wards, the prime minister may present the bill to the king the rights of children and youth, and to provide assistance for his signature and, if the king does not sign and return the to low-income women.71 A Legal Aid Center, which offers bill within 30 days, the prime minister causes the bill to be legal counseling and assistance, is affiliated with Chulalong- promulgated as an act in the Government Gazette as if the korn University.72 king had signed it.51 Customary forms of alternative dispute resolution Judicial branch Thailand’s long-standing tradition of conciliation under The constitution establishes a hierarchy of Courts of Justice, the Civil Procedure Code since 1935 was extended under with the Supreme Court at the apex of the hierarchy, followed the Civil Procedure Amendment Act (1999); the act expands by the Court of Appeal and the Courts of First Instance.52 dispute resolution procedures by allowing conciliation to be The Sarn Dikaar (Supreme Court) is the court of last resort conducted behind closed doors with all or any of the parties, and the ultimate court of appeal.53 It hears appeals from the and by allowing the court to appoint a sole conciliator or Court of Appeal and from Courts of First Instance.54 There panel of conciliators.73 Conciliation is mandatory in small are nine judges on the Supreme Court55 who are appointed claims disputes.74 The proceedings occur without a formal by the king.56 There is also a Criminal Division for Per- procedure, and may take place with or without an attorney.75 sons Holding Political Positions under the Supreme Court, Secrecy and confidentiality are enforced by barring the public which hears cases against politicians.57 The Court of Appeal and the press from the conciliation proceedings.76 PAGE 174 WOMEN OF THE WORLD:

B. THE STRUCTURE OF LOCAL GOVERNMENTS cal or health condition, personal status, economic or social The local assembly constitutes an important part of local standing, religious belief, education, and political view.94 The government, which is founded on the principles of self-gov- constitution also guarantees the right to life and prohibits tor- ernment, autonomy, and decentralization.77 Local assem- ture, cruel or inhumane punishment,95 and forced labor.96 It bly members are elected by local residents, who also have guarantees important freedoms, including the freedoms of the right to vote for the removal of any member of a local speech, expression,97 and assembly;98 and the freedoms to assembly.78 Members, who hold office for four years, may form an association, unionize,99 and practice religion;100 the also appoint some members of the local administrative com- document also guarantees family rights and the right to pri- mittee.79 Women were barred from running for local office vacy.101 The constitution asserts the right of traditional com- under the Local Administration Act (1914) until the act was munities to their customs and culture.102 It also guarantees amended in 1982.80 Women now make up 2% of village sub- the right to receive basic public health services, including free district heads.81 medical treatment for the indigent;103 the provision of thor- Local residents have the right to vote for the removal of ough and efficient public health services;104 and the preven- any member of the local assembly or the local administrative tion and eradication of harmful contagious diseases, without committee of the local government,82 and also have the right charge.105 The constitution guarantees the right of children, to draft local ordinances and request their issuance.83 youth, and family members to be protected from violence Local governing bodies may adopt their own policies and unfair treatment,106 and in its Directive Principles of dealing with their governance, administration, personnel Fundamental State Policies, the document reinforces family administration, and finance.84 integrity and the strength of communities.107 The constitution promotes employment; labor protections, especially of C. THE ROLE OF CIVIL SOCIETY AND women and children; and provides for an official system gov- NONGOVERNMENTAL ORGANIZATIONS erning labor relations, social security, and fair wages.108 There are hundreds of active NGOs in Thailand that work The constitution provides for a National Human Rights in development, environmental protection, and philanthro- Commission consisting of a president and ten other mem- py.85 NGOs play an important role in the provision of social bers appointed by the king with the advice of the Senate,109 welfare services, especially to low-income women. Approxi- which has the power to examine and report on human mately 43% of local NGOs are dependent on foreign sources rights violations.110 for most of their funding.86 The domestic legal framework is also established by several D. SOURCES OF LAW AND POLICY codifications of law, including the penal code of 1956 and the Domestic sources Civil and Commercial Code.111 The Act on the Application Domestic sources of law include the constitution, enactments of Islamic Law in the Territorial Jurisdictions of Pattani, Nara- by the National Assembly, and royal decrees.87 Other forms thiwat, Yala, and Satun (1946) applies to Muslims in these four of legislation, such as decrees, regulations, and administrative provinces.112 Successive five-year development plans provide directives made under legislative or constitutional authority comprehensive national policy frameworks for the country’s are also important sources of Thai law.88 The legal system is socioeconomic and development goals. The Ninth National based on civil law with common law influences.89 Economic and Social Development Plan (2002–2006) is cur- The 1997 Thai Constitution provides protection for “the rently operative.113 human dignity, right and liberty of the people.”90 Under the International sources section on the rights and liberties of the Thai people, the con- The constitution authorizes the king to conclude a stitution specifies that “[a] person can invoke human dignity, treaty or international agreement. Treaties that change the or exercise his or her rights and liberties in so far as it is not in makeup of Thai territories or the jurisdiction of the state, or violation of rights and liberties of other persons or contrary that require the enactment of a law, must be approved by to this Constitution or good morals. A person whose rights the National Assembly.114 Thailand has ratified the follow- and liberties recognized by this Constitution are violated can ing international legal instruments: the Convention on the invoke the provisions of this Constitution to bring a lawsuit, Elimination of All Forms of Discrimination against Women or to defend himself or herself in the court.”91 The constitu- (CEDAW) (with reservations on article 16 and article 29, para- tion guarantees equal rights to men and women,92 and equal graph 1),115 the Optional Protocol to CEDAW,116 the Conven- protection under the law.93 It prohibits discrimination on the tion on the Rights of the Child,117 the International Covenant grounds of difference in origin, race, language, sex, age, physi- on Economic, Social and Cultural Rights,118 the International THAILAND PAGE 175

Convention on the Elimination of All Forms of Racial Dis- opment Plan is the “Health for All” scheme, which aims to crimination,119 and the International Covenant on Civil and mobilize the whole society to participate in health develop- Political Rights.120 Thailand has also adopted international ment, inculcate health awareness in every part of society, and consensus documents including the 1993 Vienna Declaration open opportunities for all sectors of society to play a role and and Programme of Action; the 1994 International Confer- use their own potential in developing a healthy society.128 ence on Population and Development (ICPD) Programme of The plan’s main strategies are the following:

Action; the 1995 Beijing Declaration and Platform for Action; ■ use an assertive approach in health development;

and the 2000 United Nations Millennium Declaration and ■ establish guarantees for universal access to health ser- the Millennium Development Goals.121 vices;

■ reform the health management system, structures, and mechanisms;

II. Examining ■ strengthen civil society; Reproductive Health ■ effectively manage knowledge and information on and Rights health; and ■ develop and upgrade health service providers to pre- In general, reproductive health matters are addressed through pare them for the reform of the health system.129 a variety of complementary, and sometimes contradictory, The plan identifies 30 critical health issues; these include, laws and policies. The scope and nature of such laws and among others, meeting the challenges of the guarantee of policies reflect a government’s commitment to advancing the health for all, health system reform, improving nutrition and reproductive health status and rights of its citizens. The fol- health, and conducting research on health issues.130 Repro- lowing sections highlight key legal and policy provisions that ductive health is not specifically mentioned as one of these together determine the reproductive rights and choices of issues. The plan recognizes economic inequality and the women and girls in Thailand. resulting injustices in the present health service system.131 Specific policies introduced by the permanent secretary A. GENERAL HEALTH LAWS AND POLICIES of the Ministry of Public Health also shape health-care pri- The constitution guarantees the equal rights of all persons to orities and services, and these are implemented through the basic public health services, and the right of low-income indi- ministry’s own action plans. viduals to free medical treatment from public health facilities, A number of health-sector reforms have been set in as provided by law.122 It obligates the state to provide public motion in Thailand in recent years in an effort to establish health services thoroughly and efficiently; promote the par- universal health-care coverage.132 These reform measures ticipation of local government and the private sector in ser- find strong support in the constitution and subsequent laws vice delivery as much as possible; and prevent and eradicate that have stressed the decentralization of planning processes harmful contagious diseases for the public free of charge, as and have prompted the Ministry of Public Health to reform provided by law.123 In addition, the constitution’s prohibition the public health system through decentralization, health of unjust discrimination specifically includes the grounds of financing reform, expansion of health insurance coverage, physical or health conditions.124 Secondary to these funda- increased community participation, and greater transparency mental rights, the constitution’s Directive Principles of Funda- and accountability.133 The government is now implementing mental State Policies call on the state to provide and promote these changes. By the year 2006, health system reforms will basic and efficient public health services.125 be put into action in their entirety with the enforcement of Along with the constitution, the National Health Devel- the National Health Act,134 which is currently under the con- opment Plan under the Ninth National Economic and Social sideration by the cabinet, and will subsequently be submitted Development Plan (2002–2006), known as the Ninth National to the National Assembly for approval.135 Health Development Plan, forms the basic national legal and Infrastructure of health-care services policy framework for the implementation of health activities Government facilities and services.126 The plan focuses on extending health-care The Ministry of Public Health is the principle agency coverage with the goal of “building healthy conditions for all responsible for the promotion, support, control, and coor- Thai citizens” rather than merely treating ill heath.127 dination of all physical and mental health activities; the Objectives well-being of the Thai people; and the provision of health The main objective of the Ninth National Health Devel- services.136 Other ministries that play a role in supporting PAGE 176 WOMEN OF THE WORLD:

and implementing health activities include the Ministry of and other large public hospitals.151 These hospitals also pro- University Affairs, the Ministry of the Interior, the Ministry vide extensive reproductive health services.152 A community of Defense, and the Ministry of Education.137 In addition hospital is located in a district or subdistrict and has 10–150 to ministries, several discrete government bodies provide a beds, covering a population of 10,000 or more.153 Generally, range of support for the efficient implementation of health they provide mostly curative care, compared with the mainly programs, including support in the areas of policy planning, preventive care offered at primary care facilities.154 General budgetary allocations, human resources, international assis- hospitals have 200–500 beds, while regional hospitals have tance, statistical information, and research.138 These bod- over 500 beds and medical specialists in all fields.155 ies include the National Economic and Social Development The fifth group is tertiary level specialized care, which is Board, the Bureau of Budgets, the Civil Service Commis- provided by medical and health professionals with expertise in sion, the Department of Technical and Economic Coopera- various specializations.156 Tertiary care government facilities tion, the National Statistical Office, the Thailand Research include regional, general, and university hospitals.157 Foundation, and the Health System Research Institute.139 Approximately 112.4 million patients received outpatient Government agencies with oversight of health services for care at government facilities in 2000; this total has increased specific groups are the Social Security Office and the Insur- steadily from 11.9 million in 1977.158 Among these patients, the ance Department of the Ministry of Commerce.140 types of providers most commonly visited were health centers The Ministry of Public Health classifies health care into five and community health posts (46.1%), followed by community groups, according to the type and level of care.141 The most and extended hospitals (35.7%), and, lastly, regional and gen- basic group of health care is self-care at the family level, where eral hospitals (18.2%).159 services include the enhancement of the individual’s capacity According to a 2001 Ministry of Public Health survey to provide self-care and make decisions about health.142 on the health situation in the provinces only (i.e., excluding The next group is identified as community care at the Bangkok),160 when surveyed about where they sought care for primary care level, where services are organized by the severe illnesses, a solid majority (86.4%) relied on the public community and relate to health promotion, disease preven- sector (80.2% chose to go to public hospitals, another 6.1 % tion, simple curative care, and rehabilitative care.143 Service went to health centers, and 0.1 % used village primary care providers include village health volunteers and volunteers centers).161 In cases of minor illness, a majority said they went from NGOs.144 to public facilities. 162 Individuals living in rural areas are The next group is government health facilities at the prima- much more likely than those in urban areas to seek services ry care level.145 The services provided by health personnel and for minor illnesses at health centers and community health general practitioners include health promotion, disease pre- posts (54% vs. 15.7%), and they are less likely than their urban vention, and simple curative care. Government health facilities counterparts to seek services at community or general hospi- providing primary care include community health posts and tals (14% vs. 25%).163 health centers;146 these facilities also provide family planning The ratio of primary health-care providers to the total and maternal and child health services.147 Community health population has steadily improved in every region over the posts are village-level health service units, established specifi- past few decades; at the national level, those ratios rose from cally in remote areas, that cover a population of 500–1,000 1 to 2,421 in 1987 to 1 to 1,324 in 2000.164 The overall doc- persons and are staffed by one community health worker, tor-to-population ratio in 2000 was 1 to 3,427; the ratio was who is a Ministry of Public Health permanent employee.148 1 to 793 in the province of the metropolis Bangkok, and 1 Health centers are subdistrict- or village-level health service to 5,161 in the other 75 provinces.165 The overall nurse-to- units that cover a population of about 1,000–5,000 persons, population ratio in 2000 was 1 to 870; the ratio was 1 to 309 and have a health worker, a midwife, and a technical nurse on in Bangkok, and 1 to 1,066 in the rest of the country.166 The staff.149 Health center staff run health programs according to number of hospital beds has also recently increased in every standard Ministry of Public Health procedures under the tech- region across the country. However, as with the distribution nical supervision and support of the community hospital.150 of doctors and nurses, hospital beds are mostly concentrated (Primary care is also provided by the outpatient departments in Bangkok and the central region, with the fewest numbers of public hospitals at all levels of care.) in the northeast region.167 The fourth group is specialized care provided through Pursuant to the Act on Operationalization of Decentraliza- government health facilities at the secondary care level; these tion (1999), the Ministry of Public Health must plan for the facilities include community, general, and regional hospitals, devolution of its functions, facilities, and personnel to local THAILAND PAGE 177

administrative units, namely to tambon administrative orga- nal and child health, and general health services.180 nizations and municipalities by 2010.168 This will result in Financing and cost of health-care services the shifting of approximately 80% of the ministry’s annual Government financing budget, and about 90% of its staff will move to local admin- Health-care financing is relatively complex in Thailand, istrative units.169 with large resources devoted to health and relatively high The draft National Health Act, which is currently under administrative costs stemming from having multiple sourc- review by the cabinet, proposes broad reforms in the national es of funding.181 The total national health expenditure has health system. The draft act provides for the establishment of increased significantly over the past few decades, from 3.8% of several new mechanisms to improve the implementation of the country’s GDP in 1980 to 6.1% of GDP in 2000, with per the system, such as a National Health Committee to coordi- capita health spending rising from 545 baht (USD 13) to 4,832 nate all government policies relating to health; a health service baht (USD 118) during that period.182 Most of the national accreditation process to support quality improvement and expenditure on health is for curative care.183 accreditation of facilities at all levels; a consumers’ protection As of 2001, government health expenditure accounted for mechanism; a national health manpower development com- 57% of the total national health expenditure, and 11% of the mittee charged with the planning and regulation of service government’s total budget. Although the private and public provision by health personnel; alternative medicine provision; sectors spend roughly the same amount for care received in and a health research system.170 health-care facilities, the private sector total includes payments Privately run facilities for private drug purchases.184 In the private as in the public sector, health care is provided One of the aims of the Ninth National Health Develop- through facilities at the primary, secondary, and tertiary care ment Plan is to increase the government’s budget for activities levels.171 Private clinics, the outpatient departments of private relating to health promotion and the prevention of diseases hospitals, and drugstores all offer primary care services, while by at least 10% over the course of the plan. By its end point private hospitals provide secondary and tertiary medical treat- in 2006, an estimated 126 billion baht (approximately USD ment.172 Between 1987 and 1997, the country saw a period of 3 billion), or about 40% of the total health budget, will be rapid economic growth during which the private health sec- allocated for these activities.185 tor also expanded.173 In 2000, there were 13,099 drugstores, Private and international financing 10,875 clinics, and 461 private hospitals, with a ratio of private- In 2000, private spending accounted for 66.7% of the to-government hospital beds of one to three.174 However, as national health expenditure.186 Out-of-pocket expenses rep- a result of the economic crisis in 2001, some private facilities resented the majority of private spending on health (85% of have adjusted their operations, for example, by reducing the the total) in 1998.187 number of hospital beds and staff.175 International financial support to Thailand in the area of According to a 2001 Ministry of Public Health survey health has been declining recently, from 1.44% of total expendi- conducted in the provinces only (i.e., excluding Bang- ture on health in 1980 to 0.15% in 1990.188 In 2000, international kok), in cases of severe illness, 13.4% of respondents relied financing dropped to 0.14% of the country’s total health expen- on the private sector (i.e., 6.1% used private hospitals, 5.4% diture.189 Thailand is now seen as one of the donor countries went to private clinics, 0.5% saw local traditional practitio- providing assistance to other Southeast Asian countries.190 ners or monks, and 1.4% frequented other nongovernment One significant donor-funded project is the South-South establishments).176 A minority of respondents sought relief Cooperation on Population, Family Planning, and Reproduc- from minor ailments in the private sector (i.e., 8.5% bought tive Health; this project, established in 1995, involves a net- medicines from grocery stores, 10.5% bought remedies from work of developing countries that cooperate and exchange drugstores, and 1.7% went to private hospitals.)177 Residents information and technology on related issues, including of urban areas tend to seek treatment for minor illnesses at follow-up and support of the implementation of the ICPD private clinics more often than do residents outside of such Programme of Action.191 The project receives funding and areas (24.7% vs. 10.9%).178 technical support from the United Nations Population Fund, In addition to for-profit health facilities, there are about the Rockefeller Foundation, and the World Bank. Thailand 375 nonprofit health-related organizations throughout the was one of the founding countries of the project, and in country, including foundations and associations.179 These 1995, it established the Center for the South-South Initiative organizations have contributed to a number of health under the Reproductive Health Division of the Department programs in areas such as family planning, sanitation, mater- of Health to implement assigned activities, coordinate with PAGE 178 WOMEN OF THE WORLD:

member organizations, and direct technical cooperation in scribed by the Office of Social Security’s Regulations (1991), the field of population and reproductive health for both local are infertility treatment, tissue typing for organ transplants, and international agencies.192 artificial insemination, rehabilitation services, and any medi- Cost cal services that are deemed unnecessary for the treatment of Thailand has several health insurance and social securi- individual injuries and illnesses.202 ty schemes covering various segments of the population.193 As part of the Ninth National Economic and Social Devel- Existing schemes include the following:194 opment Plan, the government calls for health-care system

■ medical care plans for low-income persons; reform and the further development of the health insurance

■ medical care plans for civil servants and state employ- system to make it more efﬁcient, more equitable, and more ees; available to people of all disadvantaged groups. Accordingly,

■ social security and workmen’s compensation funds; the government added to the previously mentioned plans

■ voluntary health insurance supplied by the Ministry by introducing universal health-care coverage in Thailand of Public Health; by enacting the National Health Security Act in November

■ voluntary health insurance supplied by private health 2002.203 Pursuant to the act, the government announced the insurance institutions; and 30 Baht Health Plan, which is designed to provide health ser-

■ other types of insurance plans (e.g., compulsory and vices for people aged 13–50 years who lack health insurance voluntary insurance for car accidents). of any kind. The plan covers services necessary for the enjoy- There are some differences between schemes in the per ment of good health and living, including those relating to capita costs; for example, the health plans provided for civil medical treatment, rehabilitation, health promotion and pre- servants and state employees are more heavily subsidized by vention of diseases, and a range of reproductive health–care the state than are the plans for low-income individuals. There services. The cost of uncovered services and those deemed are also some discrepancies in the health benefits provided unnecessary must be borne by the individuals. Specific under each health insurance system.195 reproductive health services provided free of charge under the Health insurance coverage in Thailand has been expand- plan include family planning services, including sterilization ing.196 A 2001 government survey found that approximately services, but not infertility treatment or artificial insemina- 71% of the population is covered by at least one of the exist- tion; maternal health care; the provision of medication to pre- ing health insurance schemes, with greater coverage among vent mother-to-child transmission of HIV; delivery care (for people living in rural areas.197 Overall 31.5% of Thais are cov- the insured’s first two live births); and physical examinations ered by the plan for low-income individuals, 8.5% by the plan for the prevention and early treatment of reproductive tract for civil servants and state employees, 7.2% by social security cancers, such as cervical cancer.204 and the workmen’s compensation fund, 20.8% by voluntary Regulation of health-care providers health insurance plans under the Ministry of Public Health, Health services rendered by health-care providers in Thai- 1.3% by voluntary private health insurance plans, and 0.9% land are regulated by the Practice of the Art of Healing Act by the recently introduced 30 Baht Scheme Policy (described (1999).205 According to the act, the “practice of the art of heal- below).198 About 29.0% have no health insurance at all. These ing” is defined as the practice of a profession that is carried out uncovered individuals must pay for public or private health or aims to be carried out on human beings and concerns the care and services out of pocket, which amounts to as much as examination, diagnosis, treatment, and prevention of disease. 18.6% of the annual income of a household.199 The Act also includes health promotion and rehabilitation and Thailand established the Social Security Fund in 1990, obstetric care, but excludes all other medical and public health through the Social Security Act (1990), which requires the practices governed by other laws.206 The act prescribes several government, employers, and insured persons to make equal eligibility requirements regarding the registration and licens- contributions to the Social Security Fund at a prescribed rate. ing of individuals applying to work in their respective profes- The fund provides insurance for injury or sickness, disability, sions; these requirements cover the applicants’ age, knowledge death, maternity, old age, and, as of 1999, child and unem- of the profession, professional conduct, and physical and men- ployment benefits. As of May 2003, 7,158,068 persons were tal health status.207 insured by the Social Security Fund.200 As of April 2003, In addition to the Practice of the Art of Healing Act, other 16,709 insured persons had applied for maternity benefits, the laws concerning the medical and health professions include benefit type with the highest number of applicants.201 Medi- the Medical Treatment Profession Act (1982),208 the Nursing cal services not covered by the Social Security Act, as pre- and Midwifery Profession Act (1985, amended in 1997),209 the THAILAND PAGE 179

Pharmaceutic Profession Act (1994),210 the Dental Treatment established department’s duties, which are prescribed by the Profession Act (1994),211 and the Protection and Promotion of act and will serve to implement it, include the development, Traditional Thai Medicine Act (1999).212 support, and protection of knowledge about Thai traditional The Medical Treatment Profession Act provides for the medicine, including herbal medicine.225 establishment of the Medical Council, which is a professional Patients’ rights organization charged with the oversight of various aspects of The Medical Treatment Profession Act (1982) contains the medical profession.213 Among other functions, the coun- provisions that directly relate to the protection of patients’ cil regulates physicians’ conduct according to medical ethics rights.226 The act provides that a person wronged by the standards, provides technical support, provides advice or rec- conduct of a medical worker who violates professional codes ommendations to the government, and represents physicians of conduct has the right to lodge a complaint with the Medi- of all fields in Thailand.214 The council is directly responsible cal Council.227 Complaints must be submitted in writing.228 for registering and issuing licenses to physicians applying to The council then appoints a subcommittee to investigate work in medical professions, suspending or revoking licenses, the complaint and the accused practitioner229 before rec- and verifying that medical institutions meet academic stan- ommending that the executive committee of the council dards.215 The council also has the statutory authority to issue take certain actions, including dismissing the complaint or announcements, which are regarded as regulations, with issuing a warning to the practitioner, prescribing probation, which medical practitioners must comply.216 suspending the practitioner’s license for up to two years, or Nurses and birth attendants are under the supervision of revoking his or her license.230 The council’s judgment is the Nursing Council, which was established by the Nurs- considered to be complete and final.231 In cases where a ing and Midwifery Profession Act.217 The main objectives practitioner’s license has been revoked for wrongdoing, he of the council are to supervise the professional conduct of or she may reapply for a license.232 However, the executive nurses and birth attendants according to prescribed ethical committee of the council also has discretion to permanently standards, provide technical support, issue recommendations cancel a practitioner’s license.233 to the government, and represent nurses and birth attendants In addition to the provisions for malpractice outlined in in Thailand.218 Important duties of the council include the the Medical Treatment Profession Act, persons harmed by a registration and issuance of work licenses to persons applying practitioner may also initiate legal action for medical mal- to work as nurses and birth attendants, and the suspension and practice under provisions in the penal code that recognize revocation of licenses.219 criminal liability for negligent or unintentional acts.234 Other The Pharmaceutic Profession Act220 and the Dental Treat- code provisions that may be applied in cases of medical mal- ment Profession Act also provide for the establishment of reg- practice relate to false certification235 and the disclosure of ulatory Pharmaceutical and Dental Councils, respectively. private secrets.236 Thai traditional medical practitioners are considered to be The Medical Council, the Nursing Council, the Pharma- practitioners of the art of healing, and are supervised and con- ceutical Council, the Dental Council, and the Medical Reg- trolled by the Practice of the Art of Healing Act.221 Accord- istration Committee jointly issued a Declaration on Patients’ ing to the act, Thai traditional medicine is defined as “the Rights in 1998; this declaration includes ten fundamen- practice of the art of healing according to the Thai traditional tal rights, such as the right to receive health services with- knowledge or texts, which has been transferred and devel- out discrimination of any kind, and the right of parents or oped over the years, or has been learned from the institu- legal guardians to exercise rights on behalf of children young- tions which are accredited by the Executive Committee of the er than 18, and persons with physical or mental disabilities.237 Medical Council.”222 Thai traditional medicine encompasses The declaration raises awareness about patients’ rights, traditional medical treatments, remedies, midwifery, and other but does not include mechanisms for their protection in cases traditional practices, as determined by the minister of pub- of violations. lic health in accordance with the recommendations of the B. REPRODUCTIVE HEALTH LAWS AND POLICIES Executive Committee of the Medical Council.223 The Ministry of Public Health announced the National The Protection and Promotion of Traditional Thai Medi- Reproductive Health Policy in 1997 stating that “[a]ll Thai cine Act, which was passed in 1999 and implemented in 2002, citizens, at all ages, must have good reproductive life.”238 The was followed by the establishment of the Department for the policy specifies the following objectives: Development of Thai Traditional and Alternative Medicine ■ promote an appropriate family size for the capacity of under the Ministry of Public Health in 2002.224 The newly PAGE 180 WOMEN OF THE WORLD:

each family; responsible parenthood; ■ promote proper pre- and postnatal care; ■ adolescent reproductive health (including informa- ■ control, prevent, and provide treatment for HIV/ tion, education, counseling, and services); AIDS; ■ abortion (including prevention of unsafe abortion and ■ promote the prevention and treatment of reproduc- management of its complications and consequences); tive tract infections; ■ infertility (including prevention and appropriate ■ control malignancies of the reproductive organs; treatment); and ■ promote counseling on reproductive health issues and ■ sexual health issues among those who are past repro- the dissemination of sex education; ductive age and the elderly (including information, ■ decrease the incidence of abortion and its complica- education, and care).241 tions; At present, reproductive health services are not integrated, ■ improve reproductive health-care services and their and the various components of reproductive health care are availability among youth and adolescents; and carried out by different departments of the Ministry of Public ■ promote and provide services for peri- and post- Health, Ministry of Education, Department of Communi- 239 menopausal women and the elderly. cable Diseases, Department of Medical Services, and Depart- The policy’s implementing strategies, which aim to achieve ment of Medical Sciences 242 Moreover, these departments the policy’s objectives, are as follows: provide reproductive health services in different sectors, as ■ provide fully integrated and coordinated services, so demonstrated in the following table:243 all implementing agencies concerned may jointly plan their operational plans;

■ safeguard the human rights of all groups in society, especially women’s human rights, and encourage men Department Reproductive Health Area to take more responsibility; or Ministry Responsible for ■ encourage the full participation of people, communities, and NGOs at all levels, in order to ﬁnd appro- Implementation priate solutions to speciﬁc problems encountered by Department of Health Family planning, and maternal each community; and child health ■ aim to provide higher quality services, not simply higher quantities of services; and Department of Health HIV/AIDS (including mother- ■ disseminate information on the core elements of and Department of to-child transmission and reproductive health to all age-groups and levels of Disease Control reproductive tract infections) society, in order to raise awareness of the importance of reproductive health.240 Department of Health Malignancies of the Reproductive health care provided through the govern- and Department of reproductive tract, abortion ment health delivery system includes services in the following Medical Services and abortion complications, ten areas: infertility, and reproductive ■ family planning (including counseling; services; and health care for peri- and information, education, and communication activi- postmenopausal women and ties); the elderly ■ maternal and child health (including prenatal education and services, safe delivery and postnatal care, Department of Health, Sex education breast-feeding support, and infant care); Department of Mental

■ HIV/AIDS (including prevention and reduction Health, and Ministry efforts); of Education

■ reproductive tract infections (including information, education, and treatment); Department of Health Adolescent reproductive health

■ malignancies of the reproductive tract (including and Department of diagnosis, treatment, and education); Mental Health

■ sex education, sexuality, reproductive health and THAILAND PAGE 181

The Reproductive Health Division of the Department of Family planning Health under the Ministry of Public Health is responsible for General policy framework the overall supervision of reproductive health services. The Within the Ministry of Public Health, the Family Plan- division’s speciﬁc functions include the following: ning and Population Division of the Department of Health is

■ study, research, analyze, and develop a body of knowl- responsible for implementing the National Family Planning edge and technology concerning reproductive health; Program.251

■ develop and establish reproductive health standards The government’s objectives relating to family planning to promote and support operational mechanisms include the following:

in accordance with laws on public health and other ■ accelerate family planning efforts in areas where the related laws; and total fertility rate is still high and the contraceptive

■ provide technical assistance on reproductive health.244 prevalence rate is low;

In 2002, the Thai National Assembly organized a national ■ provide services for married and unmarried male and seminar on Reproductive Rights and Women’s Health, in female youth, with the speciﬁc aim of reducing ado- order to develop understanding and raise awareness of wom- lescent pregnancy;

en’s health and reproductive rights among National Assembly ■ promote three-year birthspacing intervals;

members, as well as to brainstorm ideas on the appropriate ■ monitor the quality of services;

changes needed in laws and regulations concerning women’s ■ promote male involvement in family planning; and

health and reproductive rights. After extensive discussions, ■ better meet the needs of speciﬁc populations, includ- seminar participants recommended a comprehensive repro- ing ethnic and religious minorities and underserved ductive health law to guard the reproductive health and rights populations.252 of all Thais and furthermore, steps have already been taken to Since 1976, Thailand has implemented a targeted family draft a protective bill.245 planning program concentrating on four groups—remote rural Regulation of reproductive health technologies villages, the southern Muslim religious communities, ethnic Thailand has no speciﬁc law on assisted reproductive tech- minority hill tribe groups, and unmarried adolescents.253 nologies. However, in 1997, the Executive Committee of the Contraception Medical Council approved regulations affecting these tech- The contraceptive prevalence rate in 2001 was 79.2%. A nologies, which include the following prescriptions:246 government survey found regional disparities in prevalence

■ each center offering assisted reproductive technolo- among married women aged 15–44, with the highest rate in gies must have an ethics committee made up of at the northern region (83.8%) and the lowest in the southern least three staff members; region (73.0%).254 The southern Muslim population has an

■ each center must provide a form for the husband and especially low rate of contraceptive use due to cultural and wife’s written consent for all procedures; and religious reasons.255

■ the Royal Thai College of Obstetricians and Gyne- The pill was the most commonly used method (by 26.8% cologists will supervise and manage the adminis- of married women), followed by female sterilization (22.6%) tration of assisted reproductive technologies and and the injectable (22.0%).256 The least used methods among produce annual reports on their use.247 Thai couples were vasectomy (1.2%), the implant (1.5%), and The World Health Organization (WHO) and Chulalong- condoms (1.7%).257 Methods that have increased in popu- korn University in Bangkok have worked together to cre- larity over the past few decades include the injectable, the ate the WHO Collaborating Centre for Research in Human pill, and the implant.258 Conversely, methods that have lost Reproduction.248 Over the past five years, the enter has ground are the IUD, vasectomy, and female sterilization.259 been involved in an assisted reproductive technology proj- While overall condom use has also declined slightly, its use ect, including an in vitro fertilization and embryo exchange among sex workers has risen.260 program using cryopreservation of embryos and sperm banks According to official data, 127,937 persons received steril- for research and treatment purposes.249 Research topics have ization services in 2000.261 The overwhelming majority were included measuring reproductive hormones, monitoring women (95%).262 The percentage of men seeking steriliza- short- and long-term effects of injectable contraceptive use, tion in every region was less than 1%, except in Bangkok, developing male methods of fertility regulation, studying where it reached 3.4%.263 Such proportions remain relatively sperm–zona pellucida interactions, and creating aging and unchanged since 1997.264 menopausal profiles.250 According to community-based research in 2001 that PAGE 182 WOMEN OF THE WORLD:

examined the pregnancy records of 1,180 women aged 15–59, All hormonal contraceptives marketed in Thailand are 45% of pregnancies were unplanned.265 required to give two standard precautions on their use; one There is no available information on contraceptive preva- advises patients to see medical doctors in case of “irregulari- lence rates among unmarried individuals, since they are not ties,” and the other warns patients with blood vessel blockage included in government family planning surveys.266 or hepatitis not to use hormonal methods.274 Contraception laws and policies Sterilization is legal in Thailand. However, there is no spe- Generally, the government does not prohibit the use of cific law on the procedure or its eligibility requirements. The contraception, except for methods with potentially harmful only requirement is that the service provider be a nurse or effects, such as pills containing over 50 micrograms of estro- midwife trained in sterilization in accordance with Ministry gen, which are known to raise the risk of hemorrhage.267 The of Public Health regulations.275 In addition, persons seeking only law dealing specifically with contraceptive methods is sterilization are required to give written informed consent a law on condoms.268 The law defines condoms as “medi- before the procedure is performed.276 cal devices” and, as such, producers and importers of these The Labour Protection Act (1998) includes a provision products must seek approval from the secretary general of relating to employee leave for sterilization.277 The law entitles the Food and Drug Administration pursuant to the Medical an employee to paid leave for such time as prescribed by an Device Act (1988). Other requirements are imposed to ensure authorized medical practitioner.278 the quality and safety of condoms.269 The Food and Drug Although there is no specific law on the eligibility criteria Administration is the main agency responsible for overseeing for sterilization, in practice medical doctors provide the ser- and making recommendations to the public health minister vice to women with at least two children with spousal con- on matters relating to contraceptives.270 sent.279 Men who seek sterilization may apply for the service The government does not prohibit the use of emergency without spousal consent.280 contraception, which has been widely used in Thailand for Government delivery of family planning services over a decade.271 There is relatively easy access to the product, Thailand’s current family planning program aims to make which is available in any drugstore. In 2000, the Ministry of family planning services available at all private and public Public Health ordered manufacturers as well as importers of facilities, including 9,661 public health centers nationwide.281 emergency contraception to change its indications for use.272 Family planning services and contraceptive methods are also The new indications state that the product may be used “[t]o provided at the village level and in remote rural communities prevent pregnancy in case of rape, incorrect use of normal through village health volunteers and an extensive network of contraceptives, or emergency cases….” Previously, the indica- mobile family planning units.282 tions were “[t]o prevent pregnancy after sexual intercourse, Contraceptive methods, such as the pill and the condom, in case other methods have not been used.” Pursuant to the are readily available at public health facilities and are provided ministry’s order, the recommended dosage and instructions for largely free of charge.283 Contraceptive services offered in use were also modified. The instructions currently call for one public health facilities include female sterilization, vasectomy, tablet to be taken within 24 hours but not more than 72 hours IUD and implant insertions, and contraceptive injections.284 after unprotected sexual intercourse, with a second tablet to be The National Health Security Act fully covers the costs of taken 12 hours after the first dose. The previous instructions family planning methods, including sterilization services, but called for one tablet to be taken immediately or within an hour it does not pay the costs of infertility treatment or artificial of having unprotected sexual intercourse.273 The order also insemination.285 Holders of a social security card may also be changes the product label from “Birth control pills after sexual reimbursed for the medical fees associated with sterilization, at intercourse” to “Emergency birth control pills.” The changes a maximum of 500 baht for men (approximately USD 12) and were partly attributable to advocacy by women’s health organi- 1,000 baht for women (approximately USD 25).286 Clients zations for more accurate indications, since inaccurate labeling covered by the universal health coverage program, “Health for had led to improper use among some Thai women. All” are also entitled to sterilization services free of cost.287 Regulation of information on contraception Family planning services provided by NGOs and the private sector There are no known legal restrictions in Thailand on Family planning services are provided by a variety of advertising contraception. Indeed, public awareness of con- sources outside of the government sector, including traditional traceptive options is a top government priority, in keeping healers, community-based organizations, NGOs, and private with its overall population plan, as well as its efforts to combat hospitals. Many of these providers partner with each other or the spread of AIDS. the government to improve access to contraception. THAILAND PAGE 183

Approximately 9% of women aged 15–44 use family plan- Policy is education on maternal health and the provision of ning services provided by private health institutions.288 adequate pre- and postnatal care.300 The nongovernmental sector plays an important role in A number of government projects and programs on the provision of family planning counseling, services, and maternal and child health have been initiated over the past information; it also conducts related education and commu- few decades. In 1988, the Bureau of Health Promotion of the nication campaigns, with an emphasis on helping couples Department of Health launched the Increase of the Capability achieve their desired family size.289 In addition to centers run of Maternal and Child Health Project in collaboration with the by the Planned Parenthood Association of Thailand, which WHO and the Ministry of University Affairs.301 The project’s target the underserved hill tribes in the northern provinc- first phase focused on increasing awareness, collecting infor- es,290 a network of community-based village health volun- mation, analyzing problems, and strategizing. In 1998, the Safe teers provides family planning services in 17,000 villages in Birth Hospital project was also initiated under the responsibil- 157 districts.291 ity of the bureau, but with the additional participation of the Maternal health Regional Public Health Division and the Office of the Perma- Thailand’s maternal mortality ratio has declined from 43.9 nent Secretary (Ministry of Foreign Affairs). Hospitals joining maternal deaths per 100,000 live births in 1996 to 23.9 deaths the project must meet prescribed service and quality standards. per 100,000 in 2002.292 There are wide variations between Specifically, they must have the capacity to provide basic prena- regions, with the highest ratio in the northern region (47.95 tal care (i.e., at least four prenatal checkups and a voluntary HIV per 100,000), followed by the southern region (23.48 per test); basic birth and delivery services, including having staff on 100,000), the northeast region (16.78 per 100,000) and the hand for emergency resuscitation, cesarean sections and prompt central region (16.45 per 100,000).293 The very high maternal transferals; and basic postpartum services (e.g., family planning mortality ratios in the northern region reflect the negative and breast-feeding promotion in accordance with the crite- health consequences of early marriage and limited access to ria of the Child-Mother Relationships Hospital Program).302 health care among the several ethnic groups in that area. The Child-Mother Relationships Hospital Program, which is The two most common causes of maternal mortality overall formally known as the Baby-Friendly Hospitals Initiative, was are hemorrhaging (42.11% of maternal deaths) and toxemia started in 1991 and promotes breast-feeding in hospitals.303 Cur- in pregnancy (15.04% of maternal deaths).294 Poverty and rently, 788 public and private hospitals and 8,650 public health lack of health insurance have been cited by experts as major centers are participating in the project.304 In 2001, the Depart- obstacles to women’s access to prenatal care in Thailand.295 ment of Health initiated the national Pregnant Women’s Health Ever since malaria has become a problem of epidemic Surveillance Project, which aims to enhance birth weight and proportions in some border areas,296 Thai women of child- promotes a target weight of at least 2,500 grams. This project bearing age in these areas are increasingly affected by malarial has produced educational materials to increase knowledge and infections, which can compromise maternal health.297 promote good health practices among pregnant women.305 Laws and policies By law, pregnant women against whom criminal proceed- Maternal health has been a stated priority of the Thai ings have been initiated or who are incarcerated are protected government since the National Health Development Plan of in several ways. The Criminal Procedure Code gives courts the Third National Economic and Social Development Plan discretion to defer imprisonment in cases where the defendant (1972–1976). The current (ninth) plan again lists maternal is over seven months’ pregnant or has a newborn less than one health, including the reduction of maternal mortality, as one month old.306 In cases where a defendant is sentenced to death of its priorities.298 The plan has adopted the following mater- while she is pregnant, the code allows the execution to be post- nal health targets: poned until after the delivery.307 In addition, the Corrections

■ reduce the proportion of women having their ﬁrst Act (1936), which was amended in 1980, categorizes a pregnant child before the age of 20 to under 10%; inmate or an inmate with a newborn as an “ill person.”308

■ reduce the maternal mortality ratio to under 18 Nutrition maternal deaths per 100,000 live births; Thailand has been largely successful in implementing poli-

■ reduce HIV prevalence among pregnant women to cies and programs addressing problems relating to nutrition under 1%; and over the past several decades.309 The government has addressed

■ reduce the prevalence of iron deﬁciency anemia nutrition concerns in successive National Economic and Social among pregnant women to under 10%.299 Development Plans, as well as in a speciﬁc national policy on A component of Thailand’s current Reproductive Health nutrition.310 PAGE 184 WOMEN OF THE WORLD:

Presently, moderate malnutrition is no longer a significant health exception has often been restricted to cases where the problem as a general matter, although it remains a problem in pregnancy endangers the woman’s life, rather than to a broad- specific geographic areas.311 However, iron deficiency ane- er range of health conditions.324 mia remains a common problem among school children and The penal code stipulates the penalties for illegal abortion, pregnant women.312 The government has adopted a compre- which vary in severity depending on the individual perform- hensive strategy that includes iron supplementation offered ing the abortion, whether the woman consented to the pro- through health clinics and schools, fortification of food prod- cedure, and whether the woman suffered additional physical ucts, and dietary diversification.313 harm because of it.325 A woman who induces her own abor- The Ministry of Public Health recently identified over- tion or allows another person to do so is liable to imprison- nutrition as an emerging health problem among adults and ment of up to three years or a fine of up to 6,000 baht (USD children. The government has not yet identified specific 146), or both;326 the penalty is more severe for the 3rd party strategies to deal with the problem, however.314 involved in performing the abortion. If the abortion is per- Safe abortion formed with the woman’s consent, whoever carries out the Official statistics on the incidence of abortion are limited. procedure is liable to imprisonment of up to five years or a While maternal health in general has improved in the past fine of up to 10,000 baht (approximately USD 244), or both.327 few decades, unsafe abortion and its complications are still If the woman did not consent, the punishment increases to widespread, particularly in rural areas,315 according to several imprisonment of up to seven years or a fine of 14,000 baht discrete government studies. In 1999, for example, the Minis- (USD 342) or both.328 The penalty is more severe in both try of Public Health conducted a survey on abortion in Thai- instances if the abortion also results in grievous bodily harm land by examining the records of women who were hospital- to the woman or her death.329 An attempt to commit the ized for the treatment of complications from miscarriages and offense of abortion is not considered a crime.330 induced abortions in 787 state hospitals nationwide.316 Of the Thus far, specific government regulations for requesting 45,990 records examined, 28.5% were of women who sought or providing abortion services have not been issued, and the an induced abortion. resulting confusion serves as a major obstacle for women Among women who sought an induced abortion, 48.6% who seek abortions. For health service providers, the lack were age 24 or younger, and had been pregnant, on average, of clear and practical regulations has created problems in for 13 weeks—a stage at which the woman is at especially the interpretation of the law. To protect themselves from high risk of infection and may suffer from a perforated uter- accusations of illegal activity, most physicians usually refuse us. More than one-quarter (28.8%) of the patients who had to perform abortions. In cases where they agree to perform sought an induced abortion developed a severe infection from the procedure, they interpret the law as narrowly as possible a perforated uterus, and 0.11% of these women died from the to safeguard themselves as much as possible.331 Currently, resulting complications.317 efforts are being made to expand the Medical Council’s According to community-based research in 2001 that guidelines on abortion by expanding the health exception examined the pregnancy records of 1,180 women aged 15–59, and drafting regulations. 8% of pregnancies resulted in abortion.318 Despite the general illegality of abortion, there are varying According to some studies, a majority of women who legal and religious interpretations in Thailand regarding when obtained an abortion in rural areas cited limiting family size life begins. The criminal code does not explicitly define abor- as their main reason for seeking an abortion.319 A significant tion or state when life begins. The Civil and Commercial proportion also cited the need for child spacing.320 Despite the Code, however, stipulates that a person comes into being after ready availability of contraceptives, several studies have shown being born alive.332 Buddhist conventional wisdom (Tripi- that a significant proportion of women who sought an abortion taka) contends that life starts at conception and that abortion were not using any method prior to the procedure.321 is an act of killing and a sin.333 However, Buddhism tolerates Abortion laws and policies given sinful acts when taking into account their social and Abortion is generally prohibited by the penal code, and legal context.334 Consequently, under Buddhism as practiced both women who seek abortions and providers who perform in Thailand, abortion is considered morally wrong but socially them are liable to penalties.322 The law allows abortion only excusable.335 In 1979, the Council of the Catholic Bishops in when the pregnancy endangers the woman’s health and in Thailand issued a statement on abortion that defines human cases of rape, and only if the procedure is performed by a life as beginning “…at the time that the parents’ seeds of life medical practitioner.323 In practice, the application of the legal have been mixed. At such time, it is to be held that there is THAILAND PAGE 185

already a conception, or a pregnancy has already occurred.”336 of HIV infection, of which 223,476 had progressed to AIDS, An abortion is thus “a murder allowed by the parents to hap- and 69,233 resulted in death.348 Most people living with AIDS pen”337 and considered “the most hideous crime.”338 are of reproductive age (15–44). Although men account for The Ninth National Health Promotion Plan issued by the most AIDS cases, the rate of HIV infection is higher among Ministry of Public Health includes an objective to lower the women aged 10–19 than among men aged 10–19. It is pro- incidence of maternal mortality and morbidity resulting from jected that an estimated 1,109,000 people, including 53,400 unsafe abortions. Under the plan, a target for government children, will be living with AIDS by 2006. Projections also medical facilities is to keep the maternal mortality ratio from estimate that the annual number of new cases of AIDS will exceeding 18 maternal deaths per 100,000 live births.339 be 17,000 in 2006, and that the cumulative total of AIDS- In addition, the Medical Council has specific directives related deaths will have reached 601,000 by that year.349 relating to abortion in its Guidelines on the Provision of The most common mode of HIV transmission is through Obstetric and Gynecological Services.340 The guidelines sexual relations (83.80%), followed by intravenous drug use advise doctors to discuss all possible options with patients (4.72%),350 mother-to-child transmission (4.31%), and blood who present with unplanned pregnancies, including legal transfusions (0.03%).351 abortion. The guidelines also stipulate that patients should HIV/AIDS remains a major problem among intravenous be informed of the possible health effects associated with drug users and sex workers; these subgroups have especially abortion, and that they should be discouraged from seeking high HIV prevalence rates of 41.7% and 12.3%, respectively.352 an illegal abortion.341 In cases where a doctor learns that a Gaps exist in the treatment and coverage of many HIV-infect- patient has had an abortion, the doctor is bound to a strict ed mothers in need of antiretroviral treatments to prevent duty of confidentiality and must not disclose the fact to any vertical transmission.353 other person or the police. A breach of this duty is consid- As a result of AIDS control and prevention campaigns, ered an offense under the penal code.342 including efforts to promote the use of condoms, the over- There is currently no comprehensive government policy all STI situation has improved in Thailand over the past few regarding postabortion care. decades. For example, the incidence of STIs was 7.85 infec- Regulation of information on abortion tions per 1,000 persons in 2001.354 Commercial drug advertisements are controlled by the Laws and policies Drug Act (1967), which restricts advertisements that “lead There is no specific legislation relating to HIV/AIDS or to an understanding that [the product] can induce mis- laws that make screening of blood products mandatory. carriages, or menstruation.”343 However, advertisements Neither are there specific laws for the protection of the intended for medical doctors may mention that a drug could rights of infected persons, although the constitution and other cause miscarriages.344 laws may be invoked in cases where such persons have suf- Government delivery of abortion services fered rights violations. The constitution specifically prohibits Abortions, to the extent permitted by law, are available in discrimination or unfair treatment on the basis of health dif- public health facilities.345 Legal abortions may be performed ferences.355 An appeal to the Medical Council may also be only by a medical doctor.346 Only authorized government made in such cases.356 The issue of how to balance protecting doctors can perform abortions; private doctors need to reg- the human rights of both the general public and of people liv- ister their certificate with the Medical Council before they ing with HIV/AIDS has been under debate and discussion, can offer the procedure. Although there is currently no but no resolution has yet been reached.357 policy on postabortion care in Thailand, the Reproductive Legal discrimination based on HIV/AIDS status has been Health Division is undertaking a three-year training project upheld in some cases. The Regulation on the Administration on postabortion care for interested physicians. of Welfare Benefits for HIV-infected Workers and Families, of Abortion services are not included in the list of health-care the Ministry of Labour and Social Welfare, requires infected services covered by the national health insurance system.347 persons to disclose their HIV/AIDS status in order to request Abortion services provided by NGOs and the private sector financial assistance for education and occupational training Since abortion is illegal in most circumstances in Thailand, and support.358 Specifically, such individuals must provide NGOs and private clinics have no data on such services. health certificates that include identifying personal informa- HIV/AIDS and other sexually transmissible infections tion and that indicate their HIV-positive status.359 (STIs) The Venereal Diseases Division of the Department of Dis- Between 1984 and 2003, there were 305,848 reported cases ease Control is the main Ministry of Public Health agency PAGE 186 WOMEN OF THE WORLD:

that makes policy relating to STIs. Because the incidence of medical treatment for HIV/AIDS patients, in all hospital of STIs in Thailand has decreased over the past few decades facilities, that meets the standards of the national health insur- in response to HIV/AIDS prevention policies, the division ance system, as well as support for the provision of alternative has not recently issued any special measures for STI control. health-care services at facilities both inside and outside the However, a specific target relating to the control of STIs aims formal health-care system.365 to keep the prevalence of STIs among the general population The government also has a policy on infected persons’ from exceeding 0.5 infections per 1,000 population.360 rights to voluntary testing.366 The policy respects the deci- The current government policy addressing HIV/AIDS is sions of infected persons who cannot be forced to undergo the National Plan for the Prevention and Alleviation of HIV/ blood tests in most situations.367 However, there is a signifi- AIDS, 2002–2006, which envisages a strong and healthy soci- cant gap between law and practice.368 ety where individuals, families, and communities “possess There are several government projects focusing on HIV/ wisdom and knowledge, have a mutual sense of concern, and AIDS prevention and treatment. One specific project aims work together to prevent and alleviate the HIV/AIDS prob- to prevent mother-to-child transmission of HIV through the lem.”361 The plan has the following broad targets: provision of AZT drugs to pregnant women. Other gov-

■ reduce the incidence of HIV/AIDS among the popu- ernment prevention efforts include a successful campaign to lation of reproductive age (15–49) to less than 1% by promote the use of condoms. The government also plans to the end of the plan period; implement a special project for the treatment of infected per-

■ increase to at least 80% the proportion of people liv- sons using generic GPO-VIR drugs (a combination of three ing with HIV/AIDS and affected individuals who antiretrovirals) in certain hospitals with appropriate equip- will have access to and be receiving appropriate care ment and specially trained staff.369 and support from public, private, and community Adolescent reproductive health providers of social, economic, educational, and pri- Adolescents 18 years and under comprise 27.6% (13.5% mary health-care services; and girls and 14.2% boys) of the total population of Thailand.370

■ have local administrations and community organiza- About 22% of adolescents who are enrolled in school report tions throughout the country efficiently and continu- having had sexual intercourse. The proportion of adolescent ously plan and carry out HIV/AIDS prevention and boys who have had sex is higher than the proportion of ado- alleviation.362 lescent girls (30.5% vs. 12.8% of the adolescents who have had It also has five broad strategies, which include the fol- sexual intercourse).371 Most adolescents are aged 15–17 when lowing: they have their first sexual experience, with boys generally

■ developing the potential of individuals, families, starting a year earlier than girls.372 The most commonly communities, and the broader social environment to mentioned person with whom adolescents ﬁrst had sex was prevent and treat HIV/AIDS and alleviate problems a girlfriend or boyfriend (77%), followed by friends, and sex associated with HIV/AIDS; workers.373 In addition, 31.0% of male adolescents had their

■ establishing health and social welfare services for the ﬁrst sexual experience involuntarily, compared with 52.7% of prevention and treatment of HIV/AIDS; female adolescents.374

■ expanding knowledge and developing research for the Studies indicate that most Thai adolescents are aware of prevention and treatment of HIV/AIDS; contraceptive methods,375 although knowledge does not nec-

■ fostering international cooperation for the prevention essarily correlate with use.376 Among married adolescent girls and treatment of HIV/AIDS; and aged 15–19, for example, approximately 89% are aware of con-

■ developing a collective program management system doms, but 43% currently use contraceptives.377 Furthermore, to integrate the tasks of HIV/AIDS prevention and a study among young people aged 15–24 from the rural areas treatment.363 of north and northeast Thailand found that 82% knew about Each strategy contains its own specific objectives, target different contraceptive methods, particularly the pill, with groups, and measures. Specific objectives and aims relating to females being more knowledgeable than males about most the rights of people living with HIV/AIDS are to ensure that methods (except for the condom).378 However, almost 30% basic health-care services are provided to infected individu- of males and 50% of females did not use any contraceptive als without discrimination, and to establish mechanisms to method during their first experience of sexual intercourse.379 protect the rights of such individuals and others affected by Among unmarried adolescents, withdrawal is the most the disease.364 The plan also calls for the mandatory provision popular method of family planning, followed by periodic THAILAND PAGE 187

abstinence, or the rhythm method.380 A study conducted of the Department of Health under the Ministry of Public among Thai secondary school students with a mean age of Health launched a program called the Wai Roon Sod Sai 14.9 years found that 23% of male students had had inter- (Vibrant Youth) Project,395 which is being implemented with course with a girlfriend or sex worker, and only 42% of them support from the Department of Health, regional health had used condoms.381 Condom use appears to be much more promotion centers, and provincial public health offices. The frequent in sexual encounters with sex workers than with project involves establishing “Friends Corners” to provide girlfriends and boyfriends.382 reproductive health services and information for adolescents. In 2001, the birthrate among very young adolescents was This government effort to provide adolescent-specific repro- 0.2 births per 1,000 girls under the age of 15. The correspond- ductive health services is the first of its kind in Thailand.396 ing rates that year were 33.7 births per 1,000 girls aged 15–19, The project was included in the Department of Health’s and 75.6 per 1,000 girls aged 20–24.383 Of all maternal deaths implementation plan for 2003.397 It is now integrated with a in Thailand in 2001, girls under the age of 20 accounted for project addressing adolescents’ use of drugs. 7.8% of the total.384 Girls younger than age 20 also accounted Apart from the reproductive health information and ser- for 30% of the total number of women who were hospitalized vices for adolescents just mentioned, the Health Promotion due to complications resulting from miscarriage and induced Office of the Department of Health has organized campaigns abortion in 1999.385 on general health promotion for adolescents under the pro- Young men and women under the age of 25 constitute gram Health for School-Age Children and Youth, which cov- 29% of the total number of cases of patients who contract ers those aged 6–21.398 STIs.386 In 2002, this age-group accounted for 12.5% of C. POPULATION the total number of persons with active HIV infections.387 Thailand’s first national population policy was declared in Although most HIV-infected persons overall are male, among March 1970.399 That policy established government support 10–19-year-olds, more women are infected than men.388 for voluntary family planning to address the then very high There are no available data concerning adolescents’ access rate of population growth, which was perceived as an obsta- to reproductive health services. However, the Ministry of cle to the economic and social development of Thailand.400 Public Health has recognized that poor accessibility to repro- Although the population policy advocated voluntary family ductive health services among adolescents is one of the main planning, the National Family Planning Program under the causes of unwanted pregnancy and complications due to Ministry of Public Health set operational targets annually unsafe abortion.389 in quantitative terms. Such targets were set beginning with The constitution provides that children and youth without the Third National Social and Economic Development Plan guardians shall have the right “to receive care and education (1972–1976) and continued through the Seventh National from the state, as provided by law.”390 It also calls upon the Social and Economic Development Plan (1992–1996); by state to “protect and develop children and the youth” in its the end point year of that plan, Thailand’s annual population Directive Principles of Fundamental State Policies.391 growth rate had fallen to 1.2%.401 The Eighth National Social Adolescent reproductive health is one component of the and Economic Development Plan (1997–2001) marked the 1997 Reproductive Health Policy, which emphasizes infor- introduction of qualitative targets that advocated for couples’ mation, education, counseling, and services.392 achieving their “appropriate family size” in line with a “peo- The Medical Council Guidelines on the Provision of ple-centered development” approach.402 With the announce- Obstetric and Gynecological Services state that physi- ment of its Reproductive Health Policy in 1997, the Ministry cians should recognize that most adolescent pregnancies are of Public Health integrated population and family planning unplanned; the guidelines recommend that physicians provide activities into reproductive health services.403 knowledge and information; recommend necessary social ser- Currently, Thailand has a total population of 62 million404, vices agencies; and discuss in depth the best options for the which is growing at a rate of 1.19% per year.405 In the near pregnant adolescent, including whether to carry the preg- future, the total fertility rate of the Thai population is expected nancy to term and raise the child or place the child for adop- to decrease to a level that is lower than replacement.406 tion.393 Physicians are also advised to discuss the resolution of The efforts of national development plans to curb popu- an unplanned pregnancy with the patient’s partner or husband lation growth, in addition to the National Family Planning or, if the patient is an unmarried minor, with her parents.394 Program’s significant gains in increasing the accessibility and Monitoring mechanisms are absent from the guidelines. acceptability of contraceptives, have contributed to the cur- In 2001, the Family Planning and Population Division PAGE 188 WOMEN OF THE WORLD:

rent low population growth rate.407 In addition, moderniza- a basic knowledge of reproductive health issues.412 tion has changed family structures and educational needs so The hill tribe population is a group for whom the gov- that having a large number of children has become a burden ernment has designed a special development policy, which rather than a beneﬁt.408 To encourage small family norms, is called the Master Plan for Community Development, the government directly supports contraceptive use, and Environment and Control of Narcotics in Highland Areas. about 79% of married women were using a modern method Currently, the Third Master Plan (2002–2006) is operational. of contraception in 2000.409 One of the main objectives of the present master plan is to Objectives control the rate of population growth in the highland areas;413 Currently, Thailand’s Ninth National Social and Econom- the plan aims to reduce the fertility rate among the highland ic Development Plan has maintained the “people-centered population to 1.5% by the end of the plan period.414 The development” concept from the previous national plan.410 birthrate of the hill tribe population was reported to be almost The ninth plan’s development policies on population contain twice that of the lowland population in 1997.415 the following strategies: Implementing agencies

■ enhancing the quality of life, and achieving a bal- The Ministry of Public Health is the core ministry respon- anced population structure and appropriate family sible for population and family planning nationwide.416 The size norms; Bureau of Social Development and Quality of Life is respon-

■ maintaining replacement level fertility; sible for the formulation and coordination of population policy

■ ensuring that Thais are in good health and capable at the national and local levels.417 The facilities responsible at of keeping up with the rapidly changing economy, the implementation level are provincial hospitals, maternal and while maintaining high ethical standards and aware- child health hospitals, community hospitals, health centers, ness of the common good in society; university hospitals, and other hospitals under the Ministry of

■ providing no fewer than nine years of education to Public Health and other ministries, as well as village health vol- the school-age population and ensuring that at least unteers, NGO volunteers, and private hospitals and clinics.418 50% of Thai laborers have completed a secondary The Center for Highlands Health Development of the school education by 2006; Department of Health is the main Ministry of Public Health

■ extending equal health insurance coverage to the agency responsible for the implementation of reproductive entire population, including social security beneﬁts health and population activities for the hill tribe population.419 for Thais of all age-groups;

■ strengthening civil society to enhance the livability of cities and communities; and III. Legal Status of ■ promoting a more efﬁcient use of natural resources Women and Girls and management of the environment, as well as the greater participation of the general population in such The health and reproductive rights of women and girls cannot efforts.411 be fully understood without taking into account their legal Building on the Ninth National Social and Economic and social status. Laws relating to their legal status not only Development Plan, the Bureau of Health Promotion of the reﬂect societal attitudes that shape the landscape of reproduc- Department of Health under the Ministry of Public Health tive rights, they directly impact their ability to exercise these has established goals for promoting the health of women of rights. A woman or adolescent girl’s marital status, her ability reproductive age. They are the following: to own property and earn an independent income, her level

■ ensuring that at least 15% of women aged 15–44 have of education, and her vulnerability to violence affect her abil- access to basic reproductive health services; ity to make decisions about her reproductive and sexual health

■ keeping the pregnancy rate among women less than and access to appropriate services. The following section 20 years of age to no more than 10%; describes the legal status of women and girls in Thailand. ■ keeping the birth control rate at at least 77%; A. RIGHTS TO EQUALITY AND ■ increasing the proportion of the working population NONDISCRIMINATION who have proper nutrition to at least 60%; Equality and freedom from discrimination are fundamental ■ raising the proportion of the working population rights under the constitution. The “supreme law of the State” who are physically ﬁt by 20%; and provides that all persons are equal before the law and enjoy ■ ensuring that at least 15% of women aged 45–59 have THAILAND PAGE 189

equal protection under the law, and that men and women gender equality, and the institution of the family;

enjoy equal rights. The constitution prohibits discrimina- ■ promote, support, and assist related activities of gov- tion on several speciﬁc grounds, which are origin, race, lan- ernment organizations and NGOs; and

guage, sex, age, physical or health condition, personal status, ■ solicit necessary relevant information and materials economic or social standing, religious belief, education, from government officers, employees, and other rel- and political views.420 However, affirmative state measures evant persons in government agencies.427 intended “to eliminate obstacles to or to promote persons’ The prime minister or the appointed deputy prime min- ability to exercise their rights and liberties as other persons ister is the commission’s chairperson, the minister of social shall not be deemed an unjust discrimination.”421 In addition development and human security is its vice-chairperson, to these fundamental guarantees, the constitution’s Directive and the director of the Office of Women’s Affairs and Family Principles of Fundamental State Policies call upon the state to Development under the Ministry of Social Development and promote equality between the sexes.422 Human Security is its secretary.428 The commission’s other In addition to being in the constitution, equality and non- membership consists of high-ranking representatives from discrimination provisions are included in some national leg- various ministries and government agencies, and up to ten islation, including the Labour Protection Act (1998) and the experts appointed by the prime minister, at least five of whom National Education Act (1999).423 (See “Labor and employ- must be directly involved in women- and family-related ment” and “Education” for more information on these acts.) issues.429 The commission reports to the prime minister.430 However, the Civil and Commercial Code, which governs The Office of Women’s Affairs and Family Development, secular marriage, divorce, and property rights, among other which is the commission’s implementing agency, works as matters, does not specifically guarantee the right to gender an integrating institution of the work of the former Office equality or prohibit gender-based discrimination.424 of National Commission on Women’s Affairs and is charged The constitution does not prohibit discrimination on the with certain responsibilities relating to promoting women’s ground of sexual orientation. Homosexuality is not a crime status. These include the following:

under the penal code.425 ■ Develop and make recommendations to promote Formal institutions and policies women’s potential, gender equality, and family unity The National Commission on Women’s Affairs and Fam- for the security of lives;

ily Development, which was formerly known as the National ■ strengthen and develop measures and mechanisms to Commission on Women’s Affairs and was restructured in promote women’s potential, gender equality, and the 2003, is the central government body charged with pro- institution of the family;

moting women’s status.426 The commission’s speciﬁc duties ■ provide academic support and resources to networks including the following: that work on promoting women’s potential, gender

■ propose to the cabinet policies and master plans that equality, and the institution of the family; and

promote women’s empowerment, gender equality, ■ promote and accelerate Thailand’s implementation of and the institution of the family; international obligations and agreements.431

■ establish implementing guidelines for approved poli- In 2001, the government passed a resolution to promote the cies and master plans consistent with the current mainstreaming of gender issues in government agencies. Pur- National Economic and Social Development Plan; suant to the resolution, each ministry or government depart-

■ coordinate, follow up, and evaluate implementation ment must appoint a chief gender equality ofﬁcer, establish of the policies, master plans, and guidelines, and a Gender Focal Point Unit, and formulate a master plan to report to the cabinet at least once a year; promote gender equality principles and integrate them into

■ advise the cabinet on the implementation of laws, plans and projects.432 regulations, policies, programs, and projects on the In addition to government institutions that focus on promotion of women’s potential, gender equality, and women’s rights, there are other agencies that address related the institution of the family; issues under a larger mandate to protect human rights. The

■ recommend appropriate mechanisms and measures, Department of the Rights and Liberties Protection under the and propose new laws or amendments, to the cabinet Ministry of Justice, which was established in 2002, is charged and the prime minister and advise them on the gov- with, among other duties, promoting awareness about human ernment’s positions in the national and international rights.433 A speciﬁc division of the department is authorized arenas with regard to promoting women’s potential, to redress problems and complaints related to the violation PAGE 190 WOMEN OF THE WORLD:

of individual rights and liberties.434 The National Human laws are contained in the Civil and Commercial Code (1934), Rights Commission,435 an independent agency established which was amended in 1976.444 Muslims in the aforemen- after the promulgation of the 1997 constitution, is empowered tioned southern provinces are governed by the Islamic Law to examine and report on acts that violate human rights or on Family and Succession.445 The preeminence of this law the government’s obligations under international treaties.436 in matters pertaining to marriage and other family affairs is The commission has several subcommittees on specific issues, established by the Act on the Application of Islamic Law in although none focus on women’s rights or gender equality.437 the Territorial Jurisdictions of Pattani, Narathiwat, Yala, and Satun Provinces (1946).446 B. CITIZENSHIP Book Five of the Civil and Commercial Code establishes Citizenship is governed by the Nationality Act (1965). Pur- the legal requirements for a valid civil marriage. The code suant to a 1992 amendment to the Nationality Act, Thai men requires the consent of both parties to the marriage, which and women may equally confer citizenship to children born must be declared publicly before a registrar and legally record- in wedlock. The amendment applies retroactively and, at ed.447 Both parties must have completed their seventeenth the time of its passage, granted citizenship to some 2,500 year of age, although minors may marry with the consent of a children who were born to Thai women married to foreign parent or a guardian, or if the minors file an application with men and were denied citizenship under the former law.438 a court requesting permission for the marriage.448 The law Children born out of wedlock to Thai mothers are citizens, forbids marriage between blood relatives, as well as between regardless of their country of birth and whether their father adoptive relatives.449 is stateless or if the identity of their father is unknown.439 The code prohibits bigamy, but does not prescribe punish- While a foreign woman married to a Thai man may apply ment for violating this prohibition.450 In practice, a person for citizenship, a foreign man married to a Thai woman does accused of bigamy may be charged with giving false informa- not have the same right.440 tion to an official under the penal code.451 Generally speaking, citizenship is not automatically con- The code includes provisions addressing the remarriage of ferred upon birth within the borders of Thailand under the widows and divorced women. In general, such women may Nationality Act. As a result, over one million Myanmar refu- remarry only after 310 days have passed since the termination gees and migrants born in Thailand are stateless, as are over of their previous marriage, with the following exceptions: one-half the population of the highlands (i.e., the hill tribe ■ a child is born during those 310 days; population of roughly 600,000–1,000,000); their stateless sta- ■ the divorced woman plans to remarry her ex-husband; tus is likely to continue because of corruption and abuse in ■ a lawful and qualified medical practitioner issues a cer- the application process for citizenship.441 tificate showing that the woman is not pregnant; or These groups are restricted in their movements and are ■ a court issues an order allowing the woman to subject to arrests and deportation, and they cannot own remarry.452 immovable property, obtain higher education, or run for pub- Although the code does not prohibit marriage between lic office.442 Women in these groups face particular hardships persons of the same sex, it provides validation for marriage and barriers to obtaining citizenship, including being unable between a man and a woman only.453 to pass the language requirement for Thai citizenship because Laws governing Muslims in four provinces of a general lack of education. Although refugee and migrant Marriages among Thai Muslims who reside in Pattani, women are frequently subject to trafficking, sexual violence, Narathiwat, Yala, and Satun must be performed in accordance and abuse at the hands of employers and police, they lack with the Islamic Law on Family and Succession.454 Although access to legal protection or remedies because of their status there is no clear indication of the minimum age for marriage, as noncitizens. They often “fall into debt and into situations the law defines a person who is “of age” as someone who has of deception, coercion, and/or exploitation” owing to their reached his or her sixteenth birthday, or who will have had noncitizen status.443 his or her tenth birthday within 15 days of marriage and have C. MARRIAGE attained puberty.455 Marriage is regulated in the family laws of Thailand; Mus- For persons who have not yet come of age but wish to lim family law applies specifically to Muslims residing in the marry, a male relative of the underage party must perform the southern provinces of Pattani, Narathiwat, Yala, and Satun; marriage ceremony.456 and general family law applies to all other Thais, non-Mus- The law permits a man to have up to four wives at one lims and Muslims alike. For most Thais, the relevant marriage time.457 THAILAND PAGE 191

The law stipulates clearly that marriage may only be For Muslims residing in Pattani, Narathiwat, Yala, and Sat- between a man and a woman.458 un, the Islamic Law on Family and Succession specifies several ways of terminating a marriage, which are the following: D. DIVORCE ■ torla (repudiation of the wife by the husband);467 The Civil and Commercial Code and the Islamic Law on ■ pasaka (judicial dissolution of the marriage);468 Family and Succession govern divorce among Thais in gen- ■ the husband’s sworn statement to the court that his eral and among Thai Muslims residing in Pattani, Narathiwat, wife has committed adultery;469 and Yala, and Satun, respectively. ■ tadrpasaka (termination of the marriage because Under the Civil and Commercial Code, divorce may be of gross misconduct of either party, including the effectuated only by mutual consent of the parties or court renunciation of Islam by either party).470 order.459 It is far easier for men to obtain a divorce than it is The law obligates a husband to provide maintenance dur- for women. A husband, for example, may request a divorce by ing iddah (the prescribed waiting period before a divorce demonstrating that his wife has committed adultery.460 A wife, becomes final) if the wife is pregnant. Such maintenance however, must in addition prove that her husband has given includes accommodation, food, and clothing.471 maintenance to or honored another woman as his wife.461 Parental rights Other grounds for divorce initiated by either spouse include: For Thais who are subject to the Civil and Commercial ■ infliction of serious harm or torture to the body or Code in family matters, the code does not clearly specify mind of the spouse, or of serious insult to the spouse which parent is entitled to custody of the couple’s children or to his or her relatives; upon divorce. Rather, divorced parents are allowed to reach a ■ desertion lasting more than one year; mutual agreement independently on the custody and main- ■ imprisonment of more than one year for an offense tenance of their children.472 In cases where parents are unable committed without the participation, consent, or to reach an agreement, they may petition a court for a judg- knowledge of the other spouse; ment on the matter, which takes into account the financial ■ if a spouse has been adjudged to have disappeared, or status of both parties and the circumstances of the case.473 has left his or her residence for more than three years The code also contains many provisions concerning and is not known to be dead or alive; the legitimacy of children, stipulating that a child born to ■ failure to provide maintenance and support to the a woman is deemed her legitimate child, regardless of the other; woman’s marital status.474 However, if the parents of the child ■ insanity for more than three consecutive years; are unmarried, the presumed father must apply for registra- ■ breaking of a bond of good behavior executed by him tion of his status as the father before he can exercise parental or her; rights.475 Under the code, he may also repudiate his paternity ■ the suffering by one spouse of a communicable and by filing a court action against the mother and child jointly.476 dangerous disease that is incurable and may cause To succeed in such a court action, the man must prove that he injury to the other; and did not cohabit with the mother during her pregnancy during ■ the physical disability of one spouse that makes per- the period from the 180th day of pregnancy to the 310th day manent cohabitation impossible.462 of pregnancy.477 Also, if the husband and wife voluntarily live separately for Laws governing Muslims more than three years because of irreconcilable differences Among Thai Muslims subject to Islamic law in Pattani, or by an order of a court, either spouse may enter a claim for Narathiwat, Yala, and Satun, the father automatically receives divorce.463 guardianship, or legal decision-making power, over the cou- In a divorce case, either party may petition the court for ple’s children upon divorce, while the mother is entitled to the amount of maintenance.464 After a divorce, if a party who their custody and care. The father is required to pay for the is entitled to maintenance fails to receive such maintenance, or maintenance of his children and has the right to take them receives inadequate maintenance, the party may petition the with him in case of a change in domicile.478 court.465 The court will determine on a case-by-case basis In cases where a woman is pregnant with a fetus her hus- whether and how much maintenance will be granted, tak- band is certain is not his, Islamic law permits the husband ing into account the ability of the paying party, the receiving to bring an action against his wife for adultery. The hus- party’s condition in life, and the circumstances of the case.466 band is required to make his claim under oath, but need not Laws governing Muslims in four provinces provide evidence for his accusation.479 A woman who does PAGE 192 WOMEN OF THE WORLD:

not repudiate the claim under oath is presumed by law to be gerial, and executive positions. Women continue to earn guilty of adultery, and is required to pay compensation to her less pay than men in all categories of employment, earning husband.480 The law also requires that the couple divorce and on average 72% of the wages of their male counterparts in forbids them from ever remarrying.481 nonagricultural employment and 64% of the wages of men in manufacturing.495 E. ECONOMIC AND SOCIAL RIGHTS The constitution’s Directive Principles of Fundamental Ownership of property and inheritance State Policies urge the state to “promote people of working The constitution protects the rights to property and suc- age to obtain employment, protect labor, especially child and cession, and provides for the scope of such rights to be woman labour, and provide for the system of labour relations, determined by law.482 It also prohibits the expropriation social security and fair wages.”496 At the level of federal legis- of immovable property except for purposes that serve the lation, the Labour Protection Act (1998) is a key labor law. In public interest, and provides for the right to fair compensa- addition, the Social Security Act (1990) includes provisions tion in such cases.483 addressing employment benefits for insured persons. In addition to the constitution, the property rights of In general, Thai law provides for equal rights in the work- most Thais are governed by the Civil and Commercial Code, place. The Labour Protection Act guarantees gender equality which contains legal provisions relating to property, including in employment and payment of wages, requiring employers ownership of immovable property.484 These provisions use to “treat male and female employees equally in their employ- the gender-neutral term “spouse” in discussing property rights ment, except where the nature or conditions of the work and do not discriminate according to sex.485 does or do not allow the employer to so do.”497 The law also The code also covers matters of succession and inheritance, specifically prohibits discrimination against pregnant work- prescribing the general rule that a deceased’s property passes to ers, prohibiting employers from terminating a female worker his or her heirs.486 The surviving spouse of a deceased person because of her pregnancy.498 The law prescribes penalties for who leaves no children is entitled to the whole inheritance.487 discriminating on the basis of gender in hiring and payment Where there are living children, the surviving spouse and of wages, subjecting employers to a fine of up to 20,000 baht children are entitled to equal parts of the inheritance, in (approximately USD 485) for violations.499 An employer accordance with the code.488 The code does not discriminate who terminates an employee on account of her pregnancy is against daughters or sons in their right to inheritance. In subject to imprisonment of up to six months, a fine of up to cases where a deceased husband leaves more than one surviv- 100,000 baht (approximately USD 2,428), or both.500 ing wife, all wives whose marriages with the deceased were Pregnant employees are entitled to maternity benefits registered before the enactment of Book Five of the Civil and under the Labour Protection Act, as well as the Social Secu- Commercial Code are jointly entitled to inherit the deceased’s rity Act. The Labour Protection Act affords pregnant employ- property.489 However, each secondary wife is entitled to only ees maternity leave of up to 90 days for each pregnancy,501 out one-half of the share of the principal wife.490 of which 45 days are paid leave.502 Under the Social Security Under the Islamic law applicable to Muslims in Pattani, Act, an insured pregnant employee is entitled to a lump sum Narathiwat, Yala, and Satun, the husband and wife have the payment in the amount of 50% of wages during a 90-day right to their own property without interference from the maternity leave in addition to what the employer pays.503 The other spouse.491 Social Security Act also covers medical treatment and supplies Rights to agricultural land provided during the course of prenatal care and childbirth; The constitution’s Directive Principles of Fundamental State lodging and meals during the institution-based delivery; Policies call upon the state to develop and appropriate a system care and treatment for the newborn; transportation to and of landholding and land use, provide sufficient water resources from the health-care institution; and other necessary services. for farmers, and protect and promote their interests.492 Insured persons are entitled to maternity benefits for up to Labor and employment two pregnancies.504 The act also provides maternity benefits In 2000, women comprised 46% of the Thai workforce.493 to the spouses of insured male workers who are married or in Almost half (48%) of the female labor force was employed in a consensual cohabiting union.505 The act also provides ben- agriculture, 35% in the service sector, and 17% in industry.494 efits for the children of insured workers,506 including coverage As of 2000, urban female workers were largely employed in for their educational expenses, and medical care and treat- the informal sector, and were underrepresented in professional ment.507 Unmarried single mothers are entitled to the same and technical professions, as well as in administrative, mana- benefits for their dependent children as are married female THAILAND PAGE 193

workers with children.508 Thai labor laws do not provide for was true among those aged 18–24.520 the establishment of nurseries in the workplace or nursing According to recent government data, there are more breaks during working hours. female than male graduates at the secondary school level, The Labour Protection Act includes certain protective as well as more females than males who earn occupational provisions for pregnant employees relating to working condi- certificates and doctorates.521 At the secondary school and tions. It prohibits employers from requiring that a pregnant undergraduate levels, more female than male students are employee work between 10 p.m. and 6 a.m., overtime, or on enrolled,522 although female students tend to be concentrat- holidays, or that she perform certain physically demanding ed in fields that are traditionally thought to be suitable for tasks specified in the act.509 A pregnant employee who pres- women.523 There are almost equal numbers of girls and boys ents a medical certificate stating that she is no longer able enrolled at both the primary and secondary school levels.524 to perform her original duties is also entitled to request her The constitution guarantees equal rights to free and qual- employer to temporarily assign her to more suitable duties ity public education for the first 12 years of schooling.525 In either before or after childbirth.510 Violations of the act’s pro- addition, the constitution’s Directive Principles of Fundamen- tective provisions for pregnant employees are punishable with tal State Policies urge the state to promote education services imprisonment of up to six months, a fine of up to 100,000 provided by the private sector, as well as by local administra- baht (approximately USD 2,436), or both.511 tive units.526 The act also contains provisions restricting certain types In addition to the constitution, the National Education of work for all female workers, regardless of pregnancy status. Act (1999) and the Compulsory Education Act (2002) are These include mining, construction, erecting and disman- key laws addressing education. In accordance with the con- tling scaffolding, producing and transporting explosives or stitution, the National Education Act provides for the equal inflammable materials, and any other work as prescribed by rights and opportunities of all individuals to receive basic pub- the regulations.512 lic education for at least 12 years. The act specifies that such Access to credit education, provided nationwide, shall be of quality and free The Civil and Commercial Code contains provisions con- of charge.527 The act creates mechanisms to ensure children’s cerning access to credit, which do not discriminate by gen- rights to access their education. The Compulsory Education der.513 A woman may apply independently for a loan from a Act (2002), which replaces the 1921 act of the same name, financial institution. If either the husband or wife wishes to obligates parents and other responsible parties, including “a use financial properties as collateral against a loan, one spouse person…for whom the child serves in domestic service,”528 to must obtain the other’s consent.514 In practice, officials usu- send children under their care to educational institutions that ally request evidence of consent from the husband of a mar- provide compulsory education.529 The act applies to children ried woman, whereas a married man is usually not requested aged 7–16,530 and defines compulsory education as education to show evidence of consent from his wife.515 from the first through the ninth year, which is considered to The Asian Development Bank has been working in col- be fundamental education.531 laboration with the Thai government on projects to improve Sex education Thai women’s access to credit, such as targeted credit mecha- According to a study of Bangkok college students, 94% of nisms, projects involving training in new labor force skills and those surveyed had knowledge about AIDS, and 92% knew self-employment skills, and small-enterprise training.516 about the major modes of transmission.532 The majority of Education students also knew that HIV could not be transmitted in vari- According to a recent assessment by the National Com- ous casual ways or by mosquitoes, and that there were no mission on Women’s Affairs of the Women’s Development vaccines to prevent infection.533 Secondary school students’ Plan under the Ninth National Economic and Social Devel- knowledge of STIs and contraception is more limited;534 their opment Plan, 63% of illiterate persons are women, mostly main sources of information in this area are books and maga- aged 40 and above.517 This gender gap in illiteracy among zines.535 Research among secondary school students and their the middle-aged population reflects imbalances in educational teachers shows that combined knowledge about their sexual- opportunities in the past.518 There is greater equality in pres- ity was only at a “moderate” level.536 Eighty two percent ent times, particularly at the primary and secondary school of students in the research sample agreed that sex education levels.519 The 2000 population census indicated that the illit- programs should be provided at the secondary school level, eracy rate was slightly higher among males aged 6–17 than and 42.6% agreed that sex education should be provided by among females in the same age-group, although the converse the family.537 PAGE 194 WOMEN OF THE WORLD:

Sex education is one component of the Thai Reproductive by their intimate partner at least one time in their life.549 In Health Policy.538 At present, the Departments of Health and addition, 4% of women who had ever been pregnant reported Mental Health of the Ministry of Public Health have joined having experienced physical violence at the hands of their forces with the Ministry of Education to revise the sex educa- partner during pregnancy.550 Research also found that the tion curriculum.539 The contents of the curriculum are to be majority of Thai women prefer to not press charges against taught according to the developmental level of the students, their abusive partners, but would rather preserve the relation- from the first grade through the secondary school level. The ship while ending the violence.551 main topics of the curriculum include human sexual develop- The constitution guarantees the right of “children, youth ment; human relationships; sexual behavior; sexual hygiene; and family members” to be protected by the state against vio- and necessary life, social, and cultural skills.540 In addition, lence and unfair treatment.552 There is no specific national the Department of Health and other government agencies law on domestic or gender-based violence, or a law that pro- are partnering with the private sector to prepare a handbook vides protection to victims of violence through a protec- on life skills for adolescents, called Modern Teenagers and the tion order or a restraining order. However, the penal code Understanding of Life.541 may be invoked to charge perpetrators of domestic violence, specifically the sections of the code under the categories of F. PROTECTIONS AGAINST PHYSICAL AND SEXUAL Offences Relating to Sexuality and Offences against Life VIOLENCE and Body.553 The Child Protection Act (2004) also protects Rape against child abuse, as does the penal code in a provision The penal code governs the crime of rape, defining the act imposing penalties for those who commit child abuse and as sexual intercourse initiated by a man with a woman who is offenses against minors.554 not his wife under any of the following circumstances: According to police procedures, when the police have been ■ against her will; informed of a criminal offense, they have a duty to under- ■ by threatening by any means whatever; take an immediate investigation or interrogation, regardless ■ through any act of violence; of whether there is a complainant;555 there is also a specific ■ by taking advantage of a woman who is unable to police protocol in cases of domestic disputes.556 According resist; or to the protocol, in cases where a husband or wife accuses ■ by causing the woman to mistake him for another the other spouse of inflicting physical harm, the officer in person.542 charge should attempt reconciliation between the parties The punishment for rape under the code is imprisonment under certain circumstances (e.g., if a weapon was not used, of one to ten years and a fine of 2,000–20,000 baht (approxi- if the injury was not serious, if the injury did not occur on a mately USD 49-487).543 If the victim is seriously injured or main road, or if the injury lacked evil intent and was “simply killed, the offender may be punished by 10–20 years’ impris- done as a means of admonishment”). If the attempt at recon- onment and a fine of 20,000–40,000 baht (approximately ciliation fails, the officer in charge must submit the results of USD 487-974), or life imprisonment or death.544 the investigation for further consideration by the local police There is not yet any legislation on marital rape. superintendent. However, if the dispute between the husband Sexual intercourse with a girl under 13 years of age, regard- and wife involves a weapon or a serious injury, or if it is car- less of whether the act was consensual, is punishable by 2–12 ried out on a main road, the officer in charge, if he deems it years’ imprisonment and a fine of 4,000–20,000 baht (approx- necessary, should submit the matter to his superintendent for imately USD 97-487).545 consideration and orders for further action, “as the govern- The code also addresses the issue of rape by a blood rela- ment has the duty to maintain peace and order, and family tive.546 The penalty is increased by one-third if the perpetra- security as a matter of importance.”557 Perpetrators of domes- tor is a relative.547 tic violence are subject to jail terms, but not to rehabilitation Domestic violence and program activities.558 Domestic violence affects Thai women across all social To ameliorate some of the problems in enforcement and classes and has been given increased attention in recent underreporting, over the past decade police units have recruit- years. However, the problem is still widely underreported.548 ed teams of female police officers in three Bangkok stations According to available information from a 2000 survey, 23% and several other parts of the country to encourage women to of women in the capital and 34% of women in the other prov- report domestic violence.559 inces reported having been the victim of physical violence In May 2002, the cabinet passed a resolution ordering THAILAND PAGE 195

the enactment of the Policy and Plan on the Elimination of 15 days. Every educational institution’s administrator must Violence against Children and Women; the National Com- take concrete action against any staff member under his or mission on Women’s Affairs had submitted this resolution to her supervision who commits an offense. If the offender was establish a national policy and plan addressing domestic vio- assisted by others, or was exempted from discipline or other lence.560 The policy serves as a guideline for the coordination necessary action, the administrator and any other persons of government agencies, NGOs, and community-based orga- responsible will also be subject to punishment.569 nizations involved in activities aimed at eliminating violence Commercial sex work and sex-trafficking against women and children.561 The designated national-level Commercial sex work is a major industry in Thailand coordinating agencies are the Office of the National Commis- involving hundreds of thousands of women and fueled, in sion on Women’s Affairs, which is responsible for policy-level part, by widespread sex tourism.570 Anecdotal information coordination on women’s affairs; the National Youth Bureau, and survey data suggest that a large number of women are which is responsible for policy-level coordination of children’s trafficked as prostitutes and as forced laborers in households, and youth’s affairs; and the National Institute for Child and factories, and farms. Thailand is both a sending and receiving Family Development of Mahidol University, which is respon- country of trafficking, and it transports women to countries sible for coordination of technical issues.562 However, to date and regions such as Japan, South Africa, Australia, Bahrain, there is no report on the implementation of the policy. Taiwan, Europe, and North America.571 There is also an Passage of domestic violence legislation is one of the main internal flow of trafficking from the northern provinces to objectives of the Women’s Development Plan under the Ninth other regions. Comprehensive official data on the prevalence National Economic and Social Development Plan.563 of commercial sex work and sex trafficking in the country Sexual harassment are not readily available. The government has recently made There is no specific or comprehensive law on sexual harass- the issue of trafficking of women and forced prostitution a ment. The Labour Protection Act addresses sexual harassment national priority. in the workplace and prohibits “a person who is in overall Thailand criminalized prostitution with the Suppression charge of staff, a supervisor, or an inspector” from sexually of Prostitution Act (1960), which penalized both prostitutes harassing female or child employees.564 The act prescribes a and their procurers, but not their clients.572 While the Pre- fine of up to 20,000 baht (approximately USD 487) for sexual vention and Suppression of Prostitution Act (1996), which harassment of a female employee565 The act does not provide repeals the 1960 act, keeps prostitution illegal and subjects a definition of sexual harassment. prostitutes to a fine of 1,000 baht (approximately USD 24), The penal code also prescribes penalties for a person who the act’s aim is to punish procurers and, for the first time, commits an “indecent act” with another person, although their clients, rather than prostitutes or child victims of pros- such acts are not clearly defined.566 titution.573 Whereas authorities have used this law to some Sexual harassment in the schools has recently received degree, enforcement remains low.574 Between 1996 and 1999, attention by the Ministry of Education. In 2000, the ministry 355 people were arrested for violating the act, but only 14 issued a regulation on the Promotion and Protection of the were convicted and sentenced.575 Rights of Children and Youth by Educational Institutions, Thailand also has a law dealing directly with trafficking which provides that educational personnel who know of an for various purposes, including prostitution. The Measures act of sexual harassment against a pupil have a duty to report in Prevention and Suppression of Trafficking in Women and the matter to the responsible authorities; further, the head of Children Act (1997) amends the Traffic in Women and Girls the educational institution concerned has to take action to Act (1928) by extending coverage to girls and boys under the protect and give assistance to the child as soon as possible.567 age of 18 who are victims of trafficking; the measures penal- The ministry also issued several subsequent policies and mea- ize conspiracy to commit a trafficking-related offense and sures, directed at educational institutions and personnel, that prescribe equal punishment for principal actors as well as for attempt to respond to widespread sexual harassment, prostitu- abettors of trafficking.576 The act also authorizes officials to tion by fraud, and commercial sex acts involving pupils and give appropriate assistance to victimized women and children students, and establishes procedures for responding to report- by providing them with food and shelter; officials are further ed incidents.568 In cases of sexual harassment committed by authorized to repatriate victims who are foreign nationals.577 educational personnel against a student, the staff member’s Other laws that can be used to prosecute traffickers of employment is suspended and a committee must respond by women and children for sexual purposes include the Pre- investigating the incident or taking some other action within vention and Suppression of Prostitution Act, the Penal Code PAGE 196 WOMEN OF THE WORLD:

Amendment Act (1997), and the Amendment of the Crimi- and participation in trafficking violations by police officers, nal Proceedings Act (1997). The Prevention and Suppression soldiers, and other government officials and, although a few of Prostitution Act punishes the procurement, seduction, or officials have been convicted, there is no systematic plan to induction of another person for the purpose of prostitution address this problem of corruption.590 There is also no law with imprisonment of one to ten years and a fine of 20,000– that provides witness protection in trafficking cases.591 200,000 baht (approximately US 487-4,870).578 The victim’s Government activities to address the problem of traf- consent is immaterial, and the law applies to both intra- and ficking include undertaking public information campaigns, extraterritorial acts.579 The Penal Code Amendment Act pre- establishing a hotline for calls to report violations, and col- scribes a similar penalty for such acts; the punishment is more laborating with NGOs to provide support services for vic- severe when the victim is a minor aged 15–17, and is increased tims. The government operated 97 shelters in 2003 for vic- even further when the child victim is under age 15.580 The tims of trafficking.592 Amendment of the Criminal Proceedings Act introduces In July 2003, the cabinet approved a draft National Policy more child-friendly procedures, such as allowing child vic- and Plan on the Prevention, Suppression and Resolution of tims of trafficking to offer testimony.581 Under the Money the Problems of the Domestic and Transnational Traffic in Laundering Control Act (1999), the state may confiscate all Women and Children.593 The policy consists of seven master property of an offender who is guilty of trafficking in women plans addressing discrete issues, including, among others, pre- and children.582 vention; assistance and protection; expatriation and relocation The Memorandum of Understanding on Common Guide- of victims; information, follow-up, and evaluation systems; lines of Practices among Concerned Agencies for Operation in and international cooperation.594 The policy is in the process Case Women and Children Are Victims of Human Traffick- of being revised.595 ing is a policy agreement signed in 1999 by government and Sexual offenses against minors law enforcement agencies and NGOs involved in addressing According to information from an NGO working in the the problem of the trafficking of women and children.583 The field of child protection, the number of child rape cases it memorandum expands the definition of human trafficking handled in 2002 increased by 39% from the previous year.596 to include forced labor, forced begging, or any other related Eighty-six of the 197 girls treated by the NGO were age nine immoral act,584 and provides protection for female and child or below, and for 93 of the girls, the perpetrator was their own victims regardless of whether they are Thai citizens, foreign- father, stepfather, or other relative.597 ers, or stateless persons residing in Thailand.585 The memo- The penal code prescribes punishment for two categories randum instructs the police to interview victims immediately of sexual offenses against minors—rape and “indecent acts.” after they have secured their release from captivity, and to The severity of punishment for both offenses varies accord- coordinate with public prosecutors to file a petition, even if ing to the minor’s age; the degree of injury to the minor; the investigation of the case is not yet complete.586 In cases the number of offenders involved in the crime; and whether involving foreign victims who enter the country illegally, the weapons were used to commit the offense.598 The code does police are instructed to work with immigration authorities to not prescribe punishment for an offender who commits rape provide for the victims’ temporary residence in Thailand in or indecent acts with his minor wife, and exempts an offend- accordance with the Immigration Act (1979), after which the er from punishment if he marries the minor after the viola- victims are to be transferred to shelters run by the government tion.599 An offender may file an application to the court for or by approved private organizations.587 The memorandum permission to marry the minor victim. also prescribes various forms of assistance to be provided to Statutory rape is defined in the code as sexual intercourse victims such as food, clothing, health care, and counseling. In with a girl under the age of 15 who is not the perpetrator’s practice, most police officials have no knowledge of the mem- wife, and is punishable with imprisonment of 10–20 years orandum, so many attempts to apprehend offenders are still and a fine of 20,000–40,000 baht (approximately USD 487- unsuccessful and widespread trafficking violations persist.588 974).600 Indecent acts with a person under the age of 13, Although Thai laws and policies addressing trafficking regardless of whether there is mutual consent, is punishable increasingly have been used to arrest offenders in recent years, with imprisonment of up to ten years or a fine of up to 20,000 the number of convictions remains low and the convictions baht (approximately USD 487), or both.601 The punishment largely result in light sentences. In 2003, there were 211 traf- is more severe if the act is committed by using threats or ficking arrests and 20 convictions, with most offenders receiv- violence, taking advantage of the victim’s inability to resist, or ing light sentences.589 There are also reports of complicity through fraud.602 THAILAND PAGE 197

According to the Thai Department of Public Welfare, an estimated 12,000 to 18,000 children are currently engaged in prostitution.603 Some government and NGO estimates indicate that 20,000 minor girls are working as prostitutes in the country. This number includes girls aged 12–18 who have been trafficked to Thailand from Myanmar, southern China, and Laos.604 Although most commercial sex workers in the country are not imprisoned or kept under physical confinement, a large number of them work under debt bondage, a condition that affects young women in particular.605 In many such cases, parents receive a large advance from the brothel that employs their daughter against her future earnings, which creates added pressure for girls to remain in their situation. In cases of trafficking for the purpose of prostitution, the Prevention and Suppression of Prostitution Act606 and the Penal Code Amendment Act prescribe increasingly severe punishments for younger victims, with penalties being harsh- est for those who traffic in the youngest victims.607 Offenders who traffic in victims younger than 15 are subject to imprisonment of 10 years and a fine of 200,000–400,000 baht (approximately USD 4,871-9,743). The punishment is still more severe if the offense is committed by means of fraud, deceit, threats, violence, or undue influence or coercion. Parents who have knowledge of and participate in the commission of an offense against a minor under their care are subject to imprisonment of 4–20 years and a fine of 80,000–400,000 baht (approximately USD 1,949-9,742).608 The punishment for owners, supervisors, and managers of establishments that engage in the sex trade is more severe if they employ minors. The Prevention and Suppression of Prostitution Act also includes a statutory rape type penalty for sexual intercourse with a person aged 16–18 in a prostitution establishment, prescribing imprisonment of one to three years and a fine of 20,000–60,000 baht (approximately USD 487-1,461) for offenders. 609 The punishment is more severe if the victim is under the age of 15. 610 A recent assessment of how the Prevention and Suppres- sion of Prostitution Act was being enforced found that, in practice, police officials tended to not report cases of minors working in prostitution establishments for fear of being charged with negligence for letting minors work as prostitutes in the first place.611 PAGE 198 WOMEN OF THE WORLD:

ENDNOTES 56. Id. § 251. 57. Id. § 272 1. See Central Intelligence Agency (CIA), U.S. Government, Thailand, in The 58. Id. § 273. World Factbook (2005), http://www.cia.gov/cia/publications/factbook/geos/th.html 59. Id. §§ 255–270. See Bureau of Democracy, supra note 6. (last modified June 14, 2005). 60. Thail. Const. § 281. 2. See Federal Research Division, Library of Congress, Thailand: A Country 61. Id. § 255. Study, ch. 1, The Crisis of 1893 (Barbara Leitch LePoer ed., 1987), http://lcweb2.loc. 62. Id. § 259. gov/frd/cs/thtoc.html (Sept. 1987); see also Central Intelligence Agency (CIA), supra 63. Id. §§ 262, 264. note 1. 64. Id. § 266. 3. Federal Research Division, Library of Congress, supra note 2, ch. 1, 1932 Coup. 65. Id. § 196. 4. Id. ch. 1, World War. 66. Id. § 276. 5. Id. 67. Flores and Reynolds, supra note 53. 6. See Bureau of Democracy, U.S. Department of State, Thailand, Country 68. Office of the Judiciary, The Judiciary of Thailand § 3.1.2, http://www.judiciary. Reports on Human Rights Practices 2004, http://www.state.gov/g/drl/rls/ go.th/eng/thejudiciary.htm#t3.1.2 (last visited July 7, 2005). hrrpt/2004/41661.htm (February 28, 2005) [hereinafter Bureau of Democracy]; see also 69. Id. Central Intelligence Agency (CIA), supra note 1. 70. Tilleke and Gibbins, Thailand Legal Basics 4 (2005), http://www.tillekeandgib- 7. Ministry of Foreign Affairs, General Information, http://www.mfa.go.th/ bins.com/Publications/thailand_legal_basics/thai_legal_system.pdf (Apr. 2005). web/14.php (last visited July 7, 2005). 71. Human Rights Internet, The Human Rights Databank, Women Lawyers’ Asso- 8. The World Bank, GenderStats, Summary Gender Profile (estimates for 2000), ciation of Thailand, http://www.hri.ca/organizations/viewOrg.asp?ID=370 (last http://genderstats.worldbank.org/genderRpt.asp?rpt=profile&cty=THA,Thailand&h visited July 6, 2005). m=home (last visited July 6, 2005). 72. Chulalongkorn University, Faculty of Law, http://www.law.chula.ac.th/ 9. See Central Intelligence Agency (CIA), supra note 1. en/02/thailand.html (last visited July 6, 2005). 10. See Id. 73. Vichai Ariyanontaka, Court-Annexed ADR in Thailand: A New Challenge, 11. Wikipedia, Thailand, http://en.wikipedia.org/wiki/Thailand (last modified July 5, http://members.tripod.com/asialaw/articles/adr.htm#f7 (last visited July 6, 2005). 2005). 74. Id. 12. Central Intelligence Agency (CIA), supra note 1. 75. Id. 13. United Nations, List of Member States, http://www.un.org/Overview/unmem- 76. Id. ber.html (last modified Feb. 24, 2005). 77. Thail. Const. §§ 282–285. 14. Bureau of East Asian and Pacific Affairs, U.S. Department of State, Back- 78. Id. § 286. ground Note: Thailand (2005), http://www.state.gov/r/pa/ei/bgn/2814.htm (Mar. 79. Id. § 285. 2005). 80. WHO, Women of South-east Asia: A Health Profile, supra note 43, at 182. 15. Id. 81. Id. 16. Thail. Const. §§ 2, 6. See Bureau of Democracy, supra note 6; see also Central 82. Thail. Const. § 286. Intelligence Agency (CIA), supra note 1. 83. Id. § 287. 17. See Central Intelligence Agency (CIA), supra note 1. 84. Id. § 284. 18. Thail. Const. § 3. 85. David Winder, Synergos Institute Series on Foundation Building in South- 19. See Central Intelligence Agency (CIA), supra note 1. east Asia, Civil Society Resource Organizations (CSROs) and Development in 20. Thail. Const. §§ 2, 10. Southeast Asia: A Summary of Findings 13, 25 (1998), http://www.synergos.org/glo- 21. Id. § 3. balphilanthropy/98/csrosinasia.pdf (last visited July 6, 2005). 22. See Bureau of Democracy, supra note 6. 86. Id. at 14 . 23. Thail. Const. § 18. 87. Thail. Const. § 230. 24. Id. § 201. 88. Flores and Reynolds, supra note 53, at 2. 25. Id..§ 202. 89. See Central Intelligence Agency (CIA), supra note 1. 26. Id. § 201. 90. Thail. Const. § 4. 27. Id. §§ 88, 201, 211–212. 91. Id. § 28. 28. Id. § 212. 92. Id. § 30. 29. Id §§ 211–212. 93. Id. §§ 5, 30. 30. Id. § 217. 94. Id. § 30. 31. Id. § 12. 95. Id. § 31. 32. National News Bureau, The Thai Monarchy, The Privy Council of Thailand, 96. Id. § 51. http://www.thaimain.org/eng/monarchy/privy.html (last visited July 7, 2005). 97. Id. § 39. 33. Thail. Const. § 218 98. Id. § 44. 34. Id. §§ 221–225 99. Id. § 45. 35. Id. § 12. 100. Id. § 38. 36. Id. § 12. 101. Id. § 34. 37. Id. § 90. 102. Id. § 46. 38. Id. § 98. 103. Id. § 52. 39 Id. § 114. 104. Id. § 52. 40. Id. § 98. 105. Id. § 52. 41. Id. § 121. 106. Id. § 53. 42. Id. § 130. 107. Id. § 80. 43. Regional Office for South-east Asia, World Health Organization, Women 108. Id. § 86. of South-east Asia: A Health Profile 181 tbl.68 (2000), [hereinafter WHO, Women 109. Id. § 199. of South-east Asia: A Health Profile], http://w3.whosea.org/EN/Section13/Sec- 110. Id. § 200. tion390/Section1376_5513.htm (last modified Aug. 20, 2004). 111. Act promulgating the Penal Code, B.E. 2499 (1956) (Thail.) (amended 1982); Civil 44. Thail. Const. § 116. and Commercial Code, B.E. 2472, (1923, 1929, 1932, 1934) (Thail.). 45. Id. § 169. 112. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and 46. Id. § 170. Satoon, B.E. 2489 (1946) (Thail.). 47. Id. § 169. 113. United Nations, Thailand’s 9th National Plan 2002–2006, http://www.un.or.th/ 48. Id. § 169. Thailand_Info/development/plan/plan.html (last visited July 7, 2005). 49. Id. § 93. 114. Thail. Const. §§ 193, 224. 50. Id. § 94. 115. Convention on the Elimination of All Forms of Discrimination against Women, 51. Id. § 94. adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. 52. Id. § 272. Doc. A/34/46 (1979) (entered into force Sept. 3, 1981) (accession with reservations by Thailand 53. 3 Flores, Arturo A. and Reynolds, Thomas H. , Foreign Law, Current Sources Sept. 8, 1985). See also Office of the United Nations H h Commissioner for Human of Codes and Legislation in Jurisdictions of the World 3 (2005). Rights (UNHCHR), Status of Ratifications of the Principle International 54. Id. Human Rights Treaties, http://www.ohchr.org/english/bodies/docs/RatificationSta- 55. Thail. Const. § 272. tus.pdf (last modified June 3, 2005). THAILAND PAGE 199

116. Optional Protocol to the Convention on the Elimination of Discrimination against Tang Dao, Krasuang Sataranasuk [The Committee on the Health Situation of Women, Oct. 6, 1999, G.A. Res. 54/4, U.N. GAOR, 54th Sess., U.N. Doc. A/Res/54/4 Foreign Workers, Ministry of Public Health], Sarub Sathanakarn Darn Sata- (1999) (entered into force Dec. 22, 2000) (ratified by Thailand Dec. 22, 2000). See also Office ranasuk Nai Rang-ngarn Tang Dao Pi Ngob Pramarn 2545 [Summary of the of the United Nations High Commissioner for Human Rights (UNHCHR), supra Health Situation of Foreign Workers in the Fiscal Year 2002], Nguad Ti Nung note 115. (Tulakhom 2544– Meenakhom 2545) [First Round, October 2001–March 2002], at 117. Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, 1–2 (for general information on the number of foreign workers who received outpatient annex, U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc. A/44/49 (1989), reprinted or inpatient health care in 2002). in 28 I.L.M. 1448 (entered into force Sept. 2, 1990) (accession by Thailand Apr. 26, 1992). 159. Bureau of Policy and Strategy, supra note 136, at 320 tbl.6.34. See also Office of the United Nations High Commissioner for Human Rights 160. Kasoung Satharanasuk [Ministry of Public Health], Satiti Satharanasuk B.E. (UNHCHR), supra note 115. 2544 [Public Health Statistics 2001] 214 tbl.4.4 (2001). This survey aimed at provid- 118. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A ing the picture of the provincial health situation, therefore, Bangkok, as the capital city, (XXI), U.N. GAOR, Supp. No. 16, at 49, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 3 (entered was excluded. About 979,075 persons were surveyed. into force Jan. 3, 1976) (accession by Thailand Dec. 5, 1999). See also Office of the United 161. Id. Nations High Commissioner for Human Rights (UNHCHR), supra note 115. 162. Id. 119. International Convention on the Elimination of All Forms of Racial Discrimina- 163. Id. tion, 660 U.N.T.S. 195 (entered into force Jan. 4. 1969 (accession with declaration by Thailand Feb. 164. Bureau of Policy and Strategy, supra note 136, at 278. 27, 2003). See also Office of the United Nations High Commissioner for Human 165. Id. at 278 tbl.6.1. Rights (UNHCHR), supra note 115. 166. Id. at 273 tbl.6. 120. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 167. National Health Development Plan, supra note 126, at 9. U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc A/6316 (1966), 999 U.N.T.S 171 (entered 168. Bureau of Policy and Strategy, supra note 136, at 456. into force Mar. 23, 1976) (accession with declaration by Thailand Jan. 29, 1997); See also Office 169. Id. of the United Nations High Commissioner for Human Rights (UNHCHR), supra 170. Id. at 450. note 115. 171. Id. at 318–319. 121. Vienna Declaration and Programme of Action, World Conference on Human Rights, 172. Id. at 318–319. Vienna, Austria, June 14–25, 1993, U.N. Doc. A/CONF.157/23 (1993); Programme of Action 173. See Id. at 250. of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 174. National Health Development Plan, supra note 126, at 9. 1994, U.N. Doc. A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for 175. Bureau of Policy and Strategy, supra note 136, at 317. Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, U.N. Doc. 176. Kasoung Satharanasuk [Ministry of Public Health], supra note 160, at 214. A/CONF.177/20 (1995); Millennium Declaration, Millennium Assembly, New York, United 177. Id. States, Sept. 6–8, 2000, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). 178. Id. 122. Thail. Const. § 52. 179. Bureau of Policy and Strategy, supra note 136, at 314. 123. Id. § 52. 180. Id. 124. Id. § 30. 181. Management Sciences for Health, Health Financing in Thailand: Final 125. Id. § 82. Integrated Report, at viii (1999), http://www.msh.org/resources/online_reports/pdf/ 126. Kana Kammakan Amnuaikan Jad Tam Pan Pattana Sukhaparb Kheang Chart thaifr0.pdf (May 1999). [hereinafter, Management Sciences for Health] Chabab Ti Kao [The Steering Committee on the Formulation of the 9th National 182. Bureau of Policy and Strategy, supra note 136, at 322. Health Development Plan], Pan Pattana Sukhaparb Kheang Chart Nai Chuang Pan 183. Id. Pattana Setthakit Lae Sungkom Kheang Chart Chabab Ti Kao B.E. 2545-2549 [The 184. Management Sciences for Health, supra note 181. National Health Development Plan under the 9th National Economic and Social Devel- 185. National Health Development Plan, supra note 126, at 64. opment Plan 2002–2006] (2001) [hereinafter National Health Development Plan]. 186. Bureau of Policy and Strategy, supra note 136, at 324 tbl.6.35. 127. Id.; World Health Organization, Country Cooperation Strategy for Thai- 187. National Health Development Plan, supra note 126. land § 2 (2003), http://www.who.int/countries/en/cooperation_strategy_tha_en.pdf 188. Bureau of Policy and Strategy, supra note 136, at 323. (June 12, 2003) [hereinafter WHO, Country Cooperation Strategy for Thailand]. 189. Id. 128. National Health Development Plan, supra note 126, at 34–35. 190. Id. 129. Id. at 40–41. 191. Kong Wang Pan Krobkroa [Family Planning and Population Division], Kra- 130. Id. at 56–57. suong Satharanasuk [Ministry of Public Health], Rai Ngaan Pra Jam Pi B.E. 2545 131. Id. at i–iii. [Annual Report 2002], at 13–14 (2003). 132. WHO, Country Cooperation Strategy for Thailand, supra note 127, § 2. 192. Id. 133. Id. § 2.1. 193. WHO, Women of South-east Asia: A Health Profile, supra note 43. 134. National Health Development Plan, supra note 126, at 35. 194. Sumnak Ngaan Satiti Haeng Chart [National Statistical Office], Kaan Sum Ruad 135. Mati Karn Prachum Kana Kammakarn Patiroop Rabop Sukhaparp Hangchart, Anamai Lae Sawatdikaan B.E.2544 [Health and Welfare Survey 2001]; Communication Krang Thee 1/2546 [The report of the National Health Reform Committee’s Meeting, with Women’s Health Advocacy Foundation (WHAF), Thailand WOW Report (draft) 7 No. 1/2003, Wed., 15 Jan. 2003, at The Meeting Room of the Office of the Permanent (Oct. 6, 2003) (on file with the Center for Reproductive Rights) [hereinafter Communi- Secretary, Ministry of Public Health] (2003); WHO, Country Cooperation Strategy cation with WHAF]. for Thailand, supra note 127, at 6. 195. Tangcharoensathien Virot, Nonthaburi, Sathaban Wijai Rabob Satharanasuk [Pub- 136. Bureau of Policy and Strategy, Ministry of Public Health, Thailand Health lic Health System Research Institute], Rabob Prakan Sukhaparp Nai Parpruam Khong Profile 1999–2000, at 314. (Suwit Wibulpolprasert et al. eds., 2002), http://w3.whosea. Prathetthai [The Overall Picture of the Health Insurance System in Thailand], in Rabob org/ehp/thfEnglish.htm (December 2002). Prakan Sukhaparp Nai Prathetthai [The Health Insurance System in Thailand] 137. Id. 32 (2001) [hereinafter, Public Health System Research Institute]. 138. Id. 196. Bureau of Policy and Strategy, supra note 136, at 350. 139. Id. 197. Id. 140. Id. 198. Id. at 351 tbl.6.56. 141. Id. at 317–319. 199. Public Health System Research Institute, supra note 195, at 37. 142. Id. at 317. 200. Samnakngaan Prakan Sungkom [The Social Security Office], Chamnuan Phoo 143. Id. at 318. Prakanton Nai Rabob Prakansangkhom Raiduan Pi 2537-2546 [The Number of the 144. Id. Insured Persons in the Monthly Social Security System, 1994-2003], also available at 145. Id. http://www.sso.molsw.go.th/info/statistic/statisticsmid3.html; Communication with 146. Id. WHAF, supra note 194, at 8. 147. Id. 201. Samnakngaan Prakan Sungkom [The Social Security Office], Chamnuan Karn 148. Id. Chai Borikarn Khong Phoo Prakanton [The Number of the Insured Persons who 149. Id. In 2000, the ratio of staff to population at health centers was 1: 1,324. Id. at 278. Applied for Health Benefits], Khor Moon Na Wanthee 5 Mesayon 2546 [Information as 150. Id. of 5 April 2003], also available at http://www.sso.molsw.go.th/info/statistic/statisticsmid4. 151. Id. at 318–319. html; Communication with WHAF, supra note 194, at 8. 152. See National Health Development Plan, supra note 126, at 10. 202. Rabieb Somnakngaan Prakan Sungkom Wa Duai Rai La Eiet Lae Nguen Kai Kaew 153. Bureau of Policy and Strategy, supra note 136, at 318. Kab Kaan Rab Borikaan Tang Kaan Paet Kong Pu Prakaan Ton Rue Koo Som Rot Kong 154. Id. at 318–319. Pu Prakaan Ton B.E. 2534 [The Social Security Office’s Regulation on the Details and 155. Id. at 319. Conditions on the Medical Services Received by the Insured Persons or Their Spouses 156. Id. 1991] (May 17, 1991). 157. Id. 203. Pra Ratchanbunyat Prakan Sukhaparb Hangchart B.E. 2545 [The National Health 158. Id. at 320 tbl.6.34; See Kana Kammakarn Dan Sataranasuk Nai Rang-ngarn Insurance Act B.E. 2545] (2002) (Thail.). PAGE 200 WOMEN OF THE WORLD:

204. Rabieb Kra Suang Satharanasuk Wa Duai Lak Pra Kaan Sukhaparb B.E.2545 [The 250. Id. Ministry of Public Health’s Regulation on the Health Insurance 2002], issued on 31 May 251. Reproductive Health Division, supra note 239, § 2, at 7. 2001; Communication with WHAF, supra note 194, at 8. 252. World Health Organization Regional Office for South-East Asia, Thai- 205. Practice of the Art of Healing Act, B.E. 2542 (1999) (Thail.). land and Family Planning: An Overview [hereinafter WHO, Thailand and Family 206. Id. § 4. Planning: An Overview], 207. Id. § 32. http://w3.whosea.org/LinkFiles/Family_Planning_Fact_Sheets_thailand.pdf (last 208. Medical Treatment Profession Act, B.E. 2525 (1982) (Thail.). visited June 27, 2005). 209. Nursing and Midwifery Profession Act, B.E. 2528 (1985) (Thail.); The Amendments 253. Thailand National Family Planning Programme, supra note 238, at 11. to the Nursing and Midwifery Profession Act, B.E. 2540 (1997) (Thail.). 254. Samnak Ngaan Songserm Sukhapaap [Bureau of Health Promotion], Krasu- 210. Pharmaceutic Profession Act, B.E. 2537 (1994) (Thail.). ang Satharanasul [Ministry of Public Health], Kaan Pramern Pon Ngaan Song- 211. Dental Treatment Profession Act, B.E. 2537 (1994) (Thail.). serm Sukhapaap Nai Pan Pattana Sethakit Lae Sungkhom Hang Chaat Chabub 212. Protection and Promotion of Traditional Thai Medicine Act, B.E. 2542 (1999) Thee Paed: Ngaan Songserm Sukhapaap Satree Wai Charern Pun [Evaluation of (Thail.). Health Promotion During the Eighth National Economic and Social Develop- 213. Medical Treatment Profession Act, B.E. 2525 (1982) (Thail.). ment Plan: Health Promotion for Women at Fertility Age] 42 (2001). [hereinafter 214. Id. § 7. Bureau of Health Promotion] Other regional percentages were the central region 215. Id. § 8. (80.5%) and the northeastern region (78.5%). Id. 216. Id. § 25. 255. Thailand National Family Planning Programme, supra note 238, at 12. 217. Nursing and Midwifery Profession Act, B.E. 2528 (1985) (Thail.); The Amendments 256. See Reproductive Health Division, supra note 239, at 14 tbl.5. to the Nursing and Midwifery Profession Act, B.E. 2540 (1997) (Thail.). 257. Bureau of Health Promotion, supra note 254, at 44. 218. Id. §§ 6–10. 258. Id. 219. Id. 259. Id. 220. Pharmaceutic Profession Act, B.E. 2537 (1994) (Thail.). 260. Id.; Bureau of Policy and Strategy, supra note 136, at 391. 221. Practice of the Art of Healing Act, B.E. 2542, §§ 4–5 (1999) (Thail.). 261. Krom Anamai [Department of Health], Krasuang Satharanasuk [Ministry of 222. Id. § 4. Public Health], Jaumnuan Phoo Rub Borikaan Wang Paen Krobkrua Rai Mai 223. Id.§ 5. Doi Karn Thammun Por Sor 2540–2543 [Number of New Persons who Obtained 224. Krom Pattan Karnpaet Pan Thai Lae Karnpaet Tang Luak [Department for the Family Planning Services by Sterilization, 1997–2000]. Development of Thai Traditional and Alternative Medicine], Prawat Karn Juttang Krom 262. Id. Pattan Karnpaet Pan Thai Lae Karnpaet Tang Luak [History of the Establishment of 263. Id. the Department for the Development of Thai Traditional and Alternative Medicine], 264. Id. http://203.157.19.1/dtam/established.htm (last visited August 14, 2003). 265. Nattaya Boonpakdee & Dusita Phuengsamran, Community-based Census on 225. Department for the Development of Thai Traditional and Alternative Medicine, Pregnancy History of Women in Two Communities in Thailand (2002) (on file Visaithat lae Panthaki [Vision and Commitment] available at http://203.157.19.1/dtam/ with the Center for Reproductive Rights). vision.htm (last visited August 14, 2003 ); Communication with WHAF, supra note 194, 266. Communication with WHAF, supra note 194, at 20. (information provided by Thai at 12. state officer overseeing reporting system within the Ministry of Public Health) (on file 226. Medical Treatment Profession Act, B.E. 2525, §§ 32–44 (1982) (Thail.). with the Center for Reproductive Rights). 227. 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Special section 132d (Dec. 27, 2000). 237. Paetthayasapaa [The Medical Council], Kam Prakard Sitti Pu Paui [Declaration on 273. Id. Patients’ Rights], http://www.tmc.or.th/hones/40.html (last visited July 17, 2003); Com- 274. Ministry of Public Health, Announcement on Types of Medicines Required to munication with WHAF, supra note 194, at 19. Provide Indications for Uses (May 26, 1978). 238. Family Planning and Population Division, Ministry of Public Health, 275. The Ministry of Public Health’s Regulation on Persons whom the Ministry, Depart- Thailand National Family Planning Programme 19 (1998) [hereinafter Thailand ments Concerned, Bangkok Metropolitan Administration, Pattaya District, Provincial National Family Planning Programme]. Administrative Organizations, Municipalities, Sanitary (Sukhaphibal) Units, Other Local 239. See Reproductive Health Division, Ministry of Public Health, Thailand Administrative Organizations, or the Thai Red Cross, assign to work under the control Reproductive Health Profile 6 (2003), http://209.61.208.100/LinkFiles/Reproduc- of officers who work as medical practitioners, B.E.2539 (1996), Article 11; Communica- tive_Health_Profile_completebook.pdf [hereinafter, Reproductive Health Division]. tion with WHAF, supra note 194, at 29. 240. Kong Wang Pan Krobkroa [Family Planning and Population Division], supra 276. Ekasaan Kun Torn Nai Kaan Tidtor Pua Kaan Tham Mun Hang [The Procedures note 191, at 12. on the Application for Tubal Ligation], Ekasaan Jaek Na Rongpayabaan Siriraj [Docu- 241. Thailand National Family Planning Programme, supra note 238, at 19–20. ments distributed at the Siriraj Hospital], obtained on July 20, 2003. 242. Id. at 20. 277. Labour Protection Act, B.E. 2541, § 33 (1998) (Thail.). 243. Id. at 21. 278. Id. 244. Kot Krasuang Baeng Suan Ratchakaan Krom Anamai [Ministerial Regulations on 279. Interview with Officials of the Reproductive Health Division, Ministry of Public the Department of Health’s Organizational Structure], Krasuang Satharanasuk [Ministry Health, by Sumalee Tokthong, Assistant Researcher, WHAF (July 21, 2003). of Public Health], B.E. 2545 (2002). 280. Interview with an obstetrician of a private hospital at Nakorn Sawan Province by 245. Rai Ngaan Kaan Summanar Ruang Sitti Anamai Jarearnpan Lae Sukhaparb Puuy- Nattaya Boonpakdee, author, 19 July 2003; Communication with WHAF, supra note 194, ing [Proceedings of a seminar on Reproductive Rights and Women’s Health], organized at 29. by the Subcommittee on Reproductive Health and Rights of the Parliamentary Com- 281. Ministry of Public Health, 2000, at 268-269; Communication with WHAF, supra mission on Public Health, Division of Family Planning and Population, Ministry of note 194, at 19. 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288. Division of Civil Registration, Department of Local Administration, Ministry 326. Id. § 301. of Interior at 43; Bureau of Policy and Strategy, supra note 136; Communication with 327. Id. § 302. WHAF, supra note 194, at 20. 328. Id. § 303. 289. Siripon Kanshana, National Reproductive Health Profile, Thailand 70 329. Id. §§ 302–303. When the abortion is performed with the woman’s consent and it (1999). causes grievous bodily harm to the woman, the party is liable to imprisonment of up 290. Management Sciences for Health, Bringing Services to Hard to Reach to seven years or a fine of up to 14,000 baht, or both. Id. § 302. In case of death of the Populations, Working Solutions—Thailand, http://erc.msh.org/mainpage. woman, the penalty is imprisonment of up to 10 years and a fine of up to 20,000 baht. cfm?file=2.2.3o.htm&module=chs&language=English (last visited June 27, 2005). Id. § 302. When the abortion is performed without the woman’s consent and it causes 291. 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In view of Buddhism, there is a necessary evil for the sake of one’s survival and Issues of Interest, Factsheet, 1 Fam. Plan. and Population (1998), www.anamai.moph. common good. The necessary evil is considered a sin but the degree of sin varies with go.th/factsheet/health1-11.htm (Aug. 1998). one’s intent and its consequential punishment by the Law of Karma is light, should it be 301. Samnak Songserm Sukhpaap [Bureau of Health Promotion], Krom Anamai conducted unintentionally. Id. [Department of Health], Krasuang Satharanasuk [Ministry of Public Health], Rai Ngaan 336. Thalangkaan Sapaa Pra Sungkarat Catholic Hang Prathethai Rueng Kaan Rueng Kaan Fao Rawang Sukhapaap Ying Mee Kan [Report on the Surveillance of Thamthang [Announcement of the Council of the Catholic Bishops in Thailand on Pregnant Women’s Health], Ekasaan Prakorb Kaan Prachum Wethee Senthang Louk Rak Abortion] 6 (Aug. 3, 1979). [Document used in the Meeting on The Path of Our Beloved Children], 5-6 August 337. 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Asian and Pacific Population Conference, Bangkok, 11-17 December 2002, at 13; Com- 318. Nattaya Boonpakdee & Dusita Phuengsamran, supra note 265. munication with WHAF, supra note 194, at 33. 319. 3 Population Division, United Nations, supra note 315, at 125. 358. The Department of Labor Welfare and Protection’s Regulation on the Administra- 320. Id. tion of Welfare Benefits for HIV-infected Workers and Families B.E. 2538, ch. 3, art. 9 321. Id. (Dec. 1, 1995). 322. Act promulgating the Penal Code, B.E. 2499, §§ 301–305 (1956) (Thail.). 359. Instruction on the Implementation of AIDS Prevention and Control for Local 323. Id. § 305(1)–(2). (the exception for rape also extends to other sexual offenses); 3 Administrative Organizations prepared by the Committee on Community Enhance- Population Division, United Nations, supra note 315, at 124. Women’s health in this ment and AIDS Control, September 1998, at 75; Communication with WHAF, supra context is generally considered only physical health. 66 Reproductive Health Divi- note 194, at 31. sion, supra note 239, at 66. 360. Kong Kama Roke [Venereal Diseases Division], Krom Kuabkhum Roke [Disease 324. Varothai, supra note 291. Control Department], Krasuang Satharanasuk [Ministry of Public Health], Prawat Lae 325. Act promulgating the Penal Code, B.E. 2499, §§ 301–305 (1956) (Thail.). Wiwattanakaan Ngaan Kuabkhum Kamaroke Nai Prathetthai [History and Develop- PAGE 202 WOMEN OF THE WORLD:

ment of Sexually Transmitted Diseases Control in Thailand], 2002, at 115; Communica- Pan Krob Krua [The Ruin of the Thai Society due to Family Planning] 47–48 (1996). tion with WHAF, supra note 194, at 33. 402. Economic Planning Unit, Government of Malaysia, Eighth Malaysia Plan 361. National AIDS Prevention and Alleviation Committee, Ministry of Public 2001–2005, (2001). Health, National Plan for the Prevention and Alleviation of HIV/AIDS in 403. Thailand National Family Planning Programme, supra note 238, at 19–20. Thailand 2002–2006, at 8 (2001), http://www.aidsthai.org/download/PlanAIDS02061. 404. Ministry of Foreign Affairs, supra note 7. doc (Nov. 2001). 405. Samnak Ngaan Sathiti Haeng Chaat [The National Statistical Office], 362. Id. at 9. Sathiti Prachakorn Lae Kaan Keha [Population and Residential Statistics], 363. Id. at 10. http://www.nso.go.th/thai/stat/stat_23/toc_1.html (last visited June 30, 2005). 364. Id. at 14. 406. Communication with WHAF, supra note 194, at 17. 365. Id. 407. Malee Lerdmaleewong & Caroline Francis, Abortion in Thailand: a Feminist Perspective, 366. Kritaya Archavanitkul, Kabuankaan Thang Sungkhom Bon Miti Kaan Muang Rueng in 5 Journal of Buddist Ethics 23, 43 n.3 (1998), http://jbe.gold.ac.uk/5/aborti1.pdf Pate Lae Rangkai Phooying [Sexuality and Body Politics in the Thai Women’s Movement], in (last visited June 29, 2005). Withee Cheewit Withee Soo Khabuankaan Prachachon Ruam Samai [The Ways 408. Id. of Life; the Ways to Fight: The Contemporary Thai People’s Movement] 14 (Pong- 409. Bureau of Health Promotion, supra note 254, at 42, 44. paijit Lae Khana ed.). 410. Royal Proclamation on the Ninth National Development Plan (B.E. 2545–2549), 367. Id. B.E. 2544, Promulgated in the Royal Gazette, No.118, Special Section, 99 Ngor (2001). 368. Id. 411. Id. 369. Krom Anamai [Department of Health], Nayabai Kaan Damnern Ngaan Pongkun 412. Bureau of Health Promotion, supra note 254, at 3. Khuabkhum Roke Prajum Pee 2546 [The 2003 Policy on the Implementation of Disease 413. Id. at 10. Prevention and Control], Nangsue Ratchakaan Wian [An Official Circular] (Dec. 26, 414. Id. at 11. 2002). 415. Chanpen Chooprapawan, Sukhapaap Khonthai Pee Por Sor 2543 [Thai People’s 370. Department of Local Administration, supra note 288; Communication with Health in the year 2000]: Sathana Sukhapaap Khonthai [The Situation of Thai WHAF, supra note 194, at 55. People’s Health] 289. 371. Communication with WHAF, supra note 194, at 55. 416. Id. at.5–18. 372. Id. 417. Ministerial regulation on restructuring the Office of the National Social and Eco- 373. Id. nomic Development Board, the Office of the Prime Minister, B.E.2545 (2002), October 374. Suan Anamai Dek Wai Rian Lae Yaowachon [School-age Children and Youth Sec- 9th, 2002; Communication with WHAF, supra note 194, at 16. tion], Samnak Songserm Sukhapaap [Bureau of Health Promotion], Krom Anamai 418. Thailand National Family Planning Programme, supra note 238, at 38. [Department of Health], Krasuang Satharanasuk [Ministry of Public Health], B.E.2545 419. Bot Baat Nathee Khong Soon Anamai Puenthee Soong [Roles and Duties of the (2002); Communication with WHAF, supra note 194, at 55. Highland Health Promotion Center], also available at http://www.anamai.moph.go.th/ 375. Saroj Pachauri & K.G. Santhya, Contraceptive behaviours of adolescents in Asia: issues fphc/Role.htm; Communication with WHAF, supra note 194, at 16. and challenges, in Towards Adulthood: Exploring the Sexual and Reproductive 420. Thail. Const. § 30. Health of Adolescents in South Asia 110 (Sarah Bott et al. eds., 2003), http://www. 421. Id.§ 30. who.int/reproductive-health/publications/towards_adulthood/towards_adultwood.pdf 422. Id.§ 80. (last visited June 29, 2005). 423. Labour Protection Act, B.E. 2541, § 15 (1998) (Thail.). 376. I. Pimonpan (2000), “Sexual attitudes and Experience of Rural Thai Youth” (Bang- 424. See Civil and Commercial Code, B.E. 2477, bk. V (1934) (amended 1976) (Thail.). kok, Institute for Populations and Social Research, Mahidol University). 425. The Penal Code Amendment Act, No. 14, B.E. 2540 (1997) (Thail.). 377. Saroj Pachauri & K.G. Santhya, Contraceptive behaviours of adolescents in Asia: issues 426. The Regulation of the Prime Minister’s Office on Women’s Affairs and Family and challenges, in Towards Adulthood: Exploring the Sexual and Reproductive Development, B.E. 2546 (2003). Health of Adolescents in South Asia 110 fig.1–2 (Sarah Bott et al. eds., 2003), http:// 427. Id. § 9. www.who.int/reproductive-health/publications/towards_adulthood/towards_adult- 428. Id. § 5. wood.pdf (last visited June 29, 2005). 429. Id. 378. Pimonpan (2000), supra note 376. 430. Id. § 9. 379. Id. 431. Id. 380. Alan Gray & Srisuman Sartsara, Communication and advocacy strategies, 432. Communication with WHAF, supra note 194, at 35. adolescent reproductive and sexual health–Case Study Thailand 4 (1999). 433. Rights and Liberties Protection Department, Ministry of Justice, http:// 381. Id. at 6. www.rlpd.moj.go.th (last visited July 1, 2005). 382. Id. at 4–5. 434. This is the Safeguard Division of the Rights and Liberties department. 383. Department of Local Administration, Ministry of Interior, compiled by Statisti- 435. National Human Rights Commission Act, B.E. 2542 (1999) (Thail.). cal Forecasting Bureau, National Statistical Office, May 2003; Communication with 436. Thail. Const. § 200. National Human Rights Commission Act, B.E. 2542 § 15 WHAF, supra note 194, at 55. (1999) (Thail.). 384. Id. 437. Saneh Chamarik, The Role of National Human Rights Commission, Thailand 385. Family Planning and Population Division, Ministry of Public Health, Survey (2002) (presented at the Conference on National and Regional Systems for the Promo- on Abortion in Thailand, Document Presented at the Meeting on the Problems tion and Protection of Human Rights, organized by the Friedrich Naumann Stiftung, of Termination of Pregnancy 7 (Aug. 6, 2001). Strasbourg, France, October 7–11, 2002). 386. Id. 438. Second and third periodic reports of States parties: Thailand, U.N. Committee on the 387. Id. Elimination of Discrimination Against Women, para. 141, U.N. Doc. CEDAW/C/ 388. Kloom Roke AIDS [AIDS Division], Samnak Roke AIDS Wanna Roke Lae THA/2-3 (1997). Roke Tidtor Thang Petsampan [AIDS, Tuberculosis and STIs Bureau], Krom Kaub- 439. Mulitplecitizenship, Thailand, http://www.multiplecitizenship.com/wscl/ws_ khum Roke [Department of Disease Control], Krasuang Satharanasuk [Ministry Thailand.html (last viewed July 27, 2004). Site no longer available. Of Public Health], Wikror Sathanakaan Phoo Tid Chua AIDS Lae Phoo Puay 440. Second and third periodic reports of States parties: Thailand, U.N. Committee on the AIDS Nai Prathetthai [Analysis of the HIV infected Persons and AIDS Patients Elimination of Discrimination Against Women, para. 138, U.N. Doc. CEDAW/C/ in Thailand] (Nov. 30, 2002). THA/2-3 (1997). 389. Warakamin & Takrudtong, supra note 300, at 8. 441. Physicians for Human Rights, No Status: Migration, Trafficking and 390. Thail. Const. § 53. Exploitation of Women in Thailand, Health and HIV/AIDS Risks for Burmese 391. Id. § 80. and Hill Tribe Women and Girls 27 (2004), http://www.phrusa.org/campaigns/aids/ 392. Thailand National Family Planning Programme, supra note 238, at 20. pdf/nostatus.pdf (June 2004). 393. Paetthayasapaa [The Medical Council], supra note 340. 442. Id. 394. Id. 443. Id. 395. Kong Wang Pan Krobkroa [Family Planning and Population Division], supra 444. Civil and Commercial Code, B.E. 2477, bk. V (1934) (amended 1976) (Thail.). See note 191, at 5. also The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and 396. Id. at 7. Satoon, B.E. 2489 (1946) (Thail.). 397. Naew Thang Kaan Damnern Ngaan Khon Krom Anamai Pee 2546 [Department 445. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and of Health’s Operational Strategies in 2003] available at http://www.anamai.moph.go.th/ Satoon, B.E. 2489 (1946) (Thail.). trend46.htm, last visited August 12, 2003; Communication with WHAF, supra note 194, 446. Id. at 56. 447. Civil and Commercial Code, B.E. 2477, bk. V, § 1458 (1934) (amended 1976) (Thail.). 398. Id. at 56–57. 448. Id. §§ 1448, 1454, 1456. 399. Thailand National Family Planning Programme, supra note 238, at 8. 449. Id. §§ 1450–1451. 400. Id. 450. Id. § 1452. 401. Pardthaisong, Tieng, Kaan Lom Salai Kong Sung Kom Thai Jaak Kaan Wang 451. Act promulgating the Penal Code, B.E. 2499, § 137 (1956) (Thail.). THAILAND PAGE 203

452. Civil and Commercial Code, B.E. 2477, bk. V, § 1453 (1934) (amended 1976) (Thail.). (2000), http://www.adb.org/Documents/CAPs/tha.pdf (Dec. 2000); See Barbara Cross- 453. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and tte, Experts Question Wisdom of Micro-credit for Women, Women’s Enews, Mar. 30, 2003, Satoon, B.E. 2489, § 22 (1946) (Thail.); Civil and Commercial Code, B.E. 2477, bk. V, tit. http://www.womensenews.org/article.cfm/dyn/aid/1239/context/cover/. 1, ch. 2 (1934) (amended 1976) (Thail.). 517. Khana Kammakaan Songserm Lae Prasanngaan Satree Hang Chaat [The 454. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and National Commission on Women’s Affairs], Samnak Nayok Rathamontree [The Satoon, B.E. 2489 (1946) (Thail.). Prime Minister’s Office], Pan Pattana Satree Nai Chuang Pan Pattana Sethakit 455. Id. § 2(4). Lae Sangkhom Hang Chaat Chabub Thee 9 (B.E. 2545–2549) [The Women’s Devel- 456. Id. bk. 1, tit. 1, ch. 2. opment Plan under the 9th National Economic and Social Development Plan 457. Id.§ 53. (2002–2006)], at 6. 458. Id. bk. 1, tit. 1, ch. 3, § 49(1). 518. Id. 459. Civil and Commercial Code, B.E. 2477, bk. V, § 1514 (1934) (amended 1976) (Thail.). 519. Id. 460. Id, § 1516(1). 520. Communication with WHAF, supra note 194, at 58. 461. Id. 521. Id. 462. Id. § 1516(2)–(4/1), (5)–(10). 522. Id. 463. Id. § 1516(4/2). 523. Khana Kammakaan Songserm Lae Prasanngaan Satree Hang Chaat [The 464. Id. § 1526 (1934) (amended 1976) (Thail.). National Commission on Women’s Affairs], supra note 517, at 6. 465. Id. § 1598/39 (1934) (amended 1976) (Thail.). 524. Id. 466. Id. § 1598/38 (1934) (amended 1976) (Thail.). 525. Thail. Const. § 43. 467. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and 526. Id. § 81. Satoon, B.E. 2489, bk. 1, tit. 3, ch. 2 (1946) (Thail.). 527. The National Education Act, B.E. 2542, § 10 (1999) (Thail.). 468. Id. ch. 3. 528. The Compulsory Education Act, B.E. 2545, § 4 (2002) (Thail.). 469. Id. ch. 4. 529. Id. § 6. 470. Id. ch. 5. Gross misconduct that may serve as a ground for divorce includes cases 530. Id. § 4. where the husband has a sexual relationship with the mother of the wife, or a step child 531. Id. who was born of the wife; or the husband has many wives and one of the wives sucks 532. Gray & Sartsara, supra note 380, at 4. milk from the breasts of another wife. 533. Id., “Sexual relations among young people in developing countries: Evidence from 471. Id. ch. 4, § 163. WHO case studies,” WHO/RHR/01.8. 1: Demographic Characteristics. Section E: 472. Civil and Commercial Code, B.E. 2477, bk. V, § 1520 (1934) (amended 1976) (Thail.). STDs/HIV/AIDS. Page 4. 473. Id. § 1598/38. 534. Id. at 6. 474. Id. § 1546. 535. Id. 475. Id. § 1547. 536. Id. 476. Id. § 1539. 537. Id. at 6–7. 477. Id. § 1539. 538. Thailand National Family Planning Programme, supra note 238, at 20. 478. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and 539. Communication with WHAF, supra note 194, at 59. Satoon, B.E. 2489, bk. 1 (1946) (Thail.) 540. Id. 479. Id. tit. 3, ch. 4, § 118. 541. Id. 480. Id. tit. 3, ch. 4, § 120. 542. Act promulgating the Penal Code, B.E. 2499, § 276 (1956) (Thail.) (amended 1997). 481. Id. tit. 3, ch. 4, § 121. 543. Id. § 276. 482. Thail. Const. § 48. 544. Id. § 277 bis. (1)–(2). 483. Id. § 49. 545. Id. § 277. 484. Civil and Commercial Code, B.E. 2475, bk. 4 (1932) (Thail.). 546. Id. § 276. However, the Civil and Commerical Code prohibits the marriage 485. Id.; Civil and Commercial Code, B.E. 2477, bk. V, §§ 1465–1493 (1934) (amended between man and woman who are blood relations. Civil and Commercial Code, B.E. 1976) (Thail.). 2477, bk. V, § 1450 (1934) (amended 1976) (Thail.). 486. The Civil and Commercial Code, B.E. 2477, bk. 6, § 1599 (1935). 547. Act promulgating the Penal Code, B.E. 2499, § 285 (1956) (Thail.) (amended 1997). 487. Id. § 1635. 548. Bureau of Democracy, supra note 6. 488. Id. 549. Institute for Population and Social Research, Mahidol University & Foun- 489. Id. § 1636. dation for Women, Fact Sheet on Intimate Partner Violence in Thailand (2003). 490. Id. 550. Id. 491. The Act on the Application of the Islamic Law in Pattani, Narathiwat, Yala, and 551. Ava Vivian Gonzalez, Home is Where the Hurt is, Women in Action (2001), http:// Satoon, B.E. 2489, bk. 1, tit. 1, ch. 1, § 28 (1946) (Thail.). www.isiswomen.org/pub/wia/wia101/hurt.html (last visited July 1, 2005) [hereinafter 492. Thail. Const. § 84. Home is Where the Hurt Is]. 493. The World Bank, supra note 8. 552. Thail. Const. § 53. 494. Id. 553. Act promulgating the Penal Code, B.E. 2499, §§ 276–287 (1956) (Thail.) (amended 495. Id.; Bureau of Democracy, supra note 6. 1982). 496. Thail. Const. § 86. 554. Child Protection Act, B.E. 2543, § 398 (2004) (Thail.); Act promulgating the Penal 497. Labour Protection Act, B.E. 2541, § 15 (1998) (Thail.). Code, B.E. 2499, § 398 (1956) (Thail.) (amended 1982). 498. Id. §§ 15, 43. 555. Pramuan Rabiab Kaan Tamruat [Compilation of the Police Procedures], 499. Id. § 146. Paak Thee Nung Rabiab Kaan Tamruat Kiew Kab Khadee [Part 1: The Police 500. Id. § 144. Procedures on Offences] tit. 1, ch. 2 art. 3(2). 501. Id. § 41. 556. Police Major-General Thawee Tatayanond, Rabiab Kaan Tamruat Kiew Kab 502. Id. §§ 58–59. Khadee Thee Prupprung Mai [The Revised Police Procedures on Offences], B.E. 503. The Social Security Act, B.E. 2533, § 67 (1990) (amended 1994) (Thail.). 2540 (1997). 504. Id. § 65. 557. Id., at 638. 505. Id.; Communication with WHAF, supra note 194, at 44. 558. Supra note 551. 506. The Social Security Act, B.E. 2533, § 74 (1990) (amended 1994) (Thail.); Communi- 559. Bureau of Democracy, supra note 6. cation with WHAF, supra note 194, at 44. 560. Khana Kammakaan Songserm Lae Prasanngaan Satree Hang Chaat [The 507. The Social Security Act, B.E. 2533, § 75 (1990) (amended 1994) (Thail.); Communi- National Commission on Women’s Affairs], Samnak Palad Samnak Nayok cation with WHAF, supra note 194, at 44. Rathamontree [Office of the Permanent Secretary of the Prime Minister’s 508. Id. Office], Nayobai Lae Pan Khajud Kwam Roonrang Tor Dek Lae Satree [Policy 509. Labour Protection Act, B.E. 2541, § 39 (1998) (Thail.). and Plan on the Elimination of Violence against Children and Women] (2002); 510. Id. § 42. Communication with WHAF, supra note 194, at 59. 511. Id. § 144. 561. Id. at 18. 512. Id. § 38. 562. Id. at 18–19. 513. Civil and Commercial Code, B.E. 2472, bk. III, §§ 650–656 (1929) (Thail.). 563. Khana Kammakaan Songserm Lae Prasanngaan Satree Hang Chaat [The 514. Civil and Commercial Code, B.E. 2477, bk. V, § 1476 (1934) (amended 1976) (Thail.). National Commission on Women’s Affairs], supra note 517. 515. Amara Pongsapit & Wimolsiri Chamnanwej, Rai Ngaan Sathanapaab Satree 564. Labour Protection Act, B.E. 2541, § 16 (1998) (Thail.). Thai Thang Kotmai Lae Sangkhom [Report on Thai Women’s Legal and Social 565. Id. § 147 (1998) (Thail.). Status] 4, http://www:thaiwomen.net/tncwa/html/html_special_th/special_2.htm, 566. Act promulgating the Penal Code, B.E. 2499, §§ 278–279 (1956) (Thail.). (last visited August 8, 2003). Site no longer available. 567. Rabiab Krasuang Suksathikaan Wa Duay Kaan Songserm Lae Khumkrong 516. Asian Development Bank, Country Assistance Plan (2001–2003), Thailand § 113 Sitthi Dek Lae Yaowachon Doi Sathansuksa B.E. 2543 [The Ministry of Educa- PAGE 204 WOMEN OF THE WORLD:

tion’s Regulation on the Promotion and Protection of the Rights of children 604. Bureau of Democracy, U.S. Department of State, Thailand, Country Reports and Youth by Educational Institutions 2000] art. 16 (2000). on Human Rights Practices 1999, http://www.usemb.se/human/human1999/thai- 568. Ministry of Education, Announcements on Measures on the Prevention land.html (Feb. 2000). of Sexual Harassment against Pupils and Students (Sept. 10, 2001); Ministry of 605. Id. Education, Announcements on Procedures to be Taken in the Cases of Sexual 606. The Prevention and Suppression of Prostitution Act, B.E. 2539, § 9 (1996) (Thail.). Harassment against Pupils and Students by Educational Personnel (Dec. 3, 607. Act promulgating the Penal Code, B.E. 2499, §§ 282–283 (1956) (Thail.); The Penal 2001); Ministry of Education, Announcements on the Policy, Measures and Code Amendment Act, No. 14, B.E. 2540, §§ 276–287 (1997) (Thail.). Guidelines on the Prevention and Solutions of the Problems of Sexual Harass- 608. The Prevention and Suppression of Prostitution Act, B.E. 2539, § 10 (1996) (Thail.). ment and Prostitution of Pupils and Children (Oct. 15, 2002). 609. Id. § 8. 569. Ministry of Education, supra note 568. 610. Id., § 8. 570. U.S. Department of State, Victims of Trafficking and Violence Protection 611. The Development of Children’s Protection Organization, Report on the Act of 2000: Trafficking in Persons Report 110 (2004), http://www.state.gov/g/ Study of the Enforcement of the 1996 Prevention and Suppression of Prostitu- tip/rls/tiprpt/2004/ [hereinafter U.S. Department of State] (last visited July 1, 2005); tion Act, Bangkok, Department of Public Welfare (2000). Bureau of Democracy, supra note 6. 571. U.S. Department of State, supra note 570; See Siriporn Skrobanek et al., The Traffic in Women: Human Realities of the International Sex Trade (1997). 572. See Human Rights Watch, The Human Rights Watch Global Report on Women’s Human Rights n.29, http://www.hrw.org/about/projects/womrep/Gen- eral-125.htm#P1956_541986 (last visited July 1, 2005). 573. See The Royal Thai Embassy, Washington, DC, Thailand’s Actions for the Prevention of Trafficking in Women and Children, http://www.thaiembdc.org/ socials/actionwc.html (last modified Jan. 24, 2003). 574. See Bureau of Democracy, supra note 6. 575. Bureau of Democracy, U.S. Department of State, Thailand, Country Reports on Human Rights Practices 1999, http://www.usemb.se/human/human1999/thailand.html (Feb. 2000). 576. Praratchabunyat Matrakaan Nai Kaan Pongkan Lae Prappram Kaan Kha Ying Lae Dek B.E. 2540. [The Measures in Prevention and Suppression of Trafficking in Women and Children Act, 1997] (1997) (Thail.). See The Royal Thai Embassy, Washington, supra note 573. 577. Praratchabunyat Matrakaan Nai Kaan Pongkan Lae Prappram Kaan Kha Ying Lae Dek B.E. 2540. [The Measures in Prevention and Suppression of Trafficking in Women and Children Act, 1997], § 11 (1997) (Thail.). In the case that the victimized person is not a Thai citizen, the repatriation of the victim shall be done in accordance with the agreement set forth in a treaty with the state party, or a convention of which Thailand is an acceding state. Id. 578. The Prevention and Suppression of Prostitution Act, B.E. 2539, § 9 (1996) (Thail.). 579. Id. 580. The Penal Code Amendment Act, No. 14, B.E. 2540, §§ 282–284, 312 (1997) (Thail.). 581. The Amendment of Criminal Proceedings Act, No.20, B.E. 2542 (1997). 582. Communication with WHAF, supra note 194, at 53. (citing Praratchabunyat Pongkan Lae Prapram Kaan Fork-ngern B.E. 2542 [The Money Laundering Control Act 1999], § 49 (1999)). 583. Sub-Committee on the Resolution of the Problems of Transnational Traf- ficking of Children and Women, National Commission on Women’s Affairs, Memorandum of Understanding on Common Guidelines of Practices among Concerned Agencies for Operation in Case Women and Children are Victims of Human Trafficking, B.E. 2542 (1999). 584. Id. art. 2(1). 585. Id. art. 3. 586. Id. art. 4(1). 587. Id. art. 5(3). 588. Anti-slavery International, Human Traffic, Human Rights: Redefining Victim Protection 173–185 (2002), http://www.antislavery.org/homepage/resources/ humantraffic/Hum%20Traff%20Hum%20Rights,%20redef%20vic%20protec%20final% 20full.pdf (last visited July 1, 2005). 589. U.S. Department of State, supra note 570. 590. Id. 591. Anti-slavery International, supra note 588, at 179. See also U.S. Department of State, supra note 570. 592. U.S. Department of State, supra note 570. 593. Communication with WHAF, supra note 194, at 54. 594. Id. 595. Id. 596. S. Ekachai, Is this a society we can be proud of?, Bangkok Post, Jan. 3, 2002; ECPAT Foundation, Editor Challenges Country to Stem Child Abuse, UN Wire, Apr. 1, 2002, http://www.expat.net/preventionproject/eng/new/articles_0006.htm. 597. Id. 598. Act promulgating the Penal Code, B.E. 2499, §§ 277, 279 (1956) (Thail.). 599. Id. §§ 277–281. 600. Id. § 277. 601. Id. § 278. 602. Id. § 279. 603. End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes’ (ECPAT) International, Country Report: Thailand, http:// www.ecpat.net/eng/Ecpat_inter/projects/monitoring/online_database/countries. asp?arrCountryID=173&CountryProfile=facts&CSEC=Overview,Prostitution,Pronog raphy,trafficking&Implement=Coordination_cooperation,Coordination_cooperation,P rotection,Recovery&Nationalplans=&DisplayBy=optDisplayCountry#cs1 (last visited July 1, 2005). LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES PAGE 205 5. Vietnam

Statistics

GENERAL Population

■ Total population (millions): 84.2.1

■ Population by sex (thousands): 41,382.0 (female) and 41,099.0 (male).2

■ Percentage of population aged 0–14: 31.4.3

■ Percentage of population aged 15–24: 20.7.4

■ Percentage of population in rural areas: 74.5 Economy

■ Annual percentage growth of gross domestic product (GDP): 7.6.6

■ Gross national income per capita: USD 480.7

■ Government expenditure on health: 1.5% of GDP.8

■ Government expenditure on education: 2.8% of GDP.9

■ Percentage of population below the poverty line: 29.10

WOMEN’S STATUS

■ Life expectancy: 73.1 (female) and 69.1 (male).11

■ Average age at marriage: 23.1 (female) and 24.4 (male).12

■ Labor force participation: 79.4 (female) and 86.0 (male).13

■ Percentage of employed women in agricultural labor force: Information unavailable.

■ Percentage of women among administrative and managerial workers: Information unavailable.

■ Literacy rate among population aged 15 and older: 92% (female) and 95% (male).14

■ Percentage of female-headed households: 32.15

■ Percentage of seats held by women in national government: 27.16

■ Percentage of parliamentary seats occupied by women: 27.17

CONTRACEPTION

■ Total fertility rate: 2.23.18

■ Contraceptive prevalence rate among married women aged 15–49: 79% (any method) and 57% (modern method).19

■ Prevalence of sterilization among couples: 6.8% (total); 6.3% (female); 0.5%(male).20

■ Sterilization as a percentage of overall contraceptive prevalence: 9.21

MATERNAL HEALTH

■ Lifetime risk of maternal death: 1 in 290 women.22

■ Maternal mortality ratio per 100,000 live births: 130.23 PAGE 206 WOMEN OF THE WORLD:

■ Percentage of pregnant women with anemia: 52.24

■ Percentage of births monitored by trained attendants: 85.25

ABORTION

■ Total number of abortions per year: 1,520,000.26

■ Annual number of hospitalizations for abortion-related complications: Information unavailable.

■ Rate of abortion per 1,000 women aged 15–44: 83.3.27

■ Breakdown by age of women obtaining abortions: 0.9% (under 20); 11.3% (age 20–24); 22.4% (age 25–29); 30.7% (age 30–34); 21.3% (age 35–39); 13.3% (40 or older).28

■ Percentage of abortions that are obtained by married women: 96.2.29

SEXUALLY TRANSMISSIBLE INFECTIONS (STIS) AND HIV/AIDS

■ Number of people living with sexually transmissible infections: Information unavailable.

■ Number of people living with HIV/AIDS: 220,000.30

■ Percentage of people aged 15–49 living with HIV/AIDS: 0.3 (female) and 0.7 (male).31

■ Estimated number of deaths due to AIDS: 9,000.32

CHILDREN AND ADOLESCENTS

■ Infant mortality rate per 1,000 live births: 28.33

■ Under ﬁve mortality rate per 1,000 live births: 37 (female) and 52 (male).34

■ Gross primary school enrollment ratio: 97% (female) and 105% (male).35

■ Primary school completion rate: 88 (female) and 90 (male).36

■ Number of births per 1,000 women aged 15–19: 19.37

■ Contraceptive prevalence rates among married female adolescents: 14.9% (modern methods); 3.2% (traditional methods); 18.1% (any methods).38

■ Percentage of abortions that are obtained by women younger than age 20: 0.9.39

■ Number of children under the age of 15 living with HIV/AIDS: Information unavailable. VIETNAM PAGE 207

ENDNOTES

1. See United Nations Population Fund (UNFPA), The State of World Population 2005, at 112 (estimate for 2004). 2. See United Nations Population Fund (UNFPA), Country Profiles for Population and Reproductive Health: Policy Developments and Indicators 2003 (2003), http://www.unfpa.org/profile/default.cfm. [hereinafter UNFPA Country Profiles]. 3. See The World Bank, World Development Indicators 2004, at 40 (2004), http:// www.worldbank.org/data/ (estimate for 2002). [hereinafter The World Bank]. 4. See UNFPA, Country Profiles, supra note 2. 5. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimate for 2003). 6. See The World Bank, supra note 3, at 184 (estimate for 1990-2002). 7. See The World Bank, World Development Indicators 2004: Data Query (2004), http://devdata.worldbank.org/data-query/ (statistical figure was obtained through the Atlas method) (estimate for 2003). 8. See UNFPA, The State of World Population 2005, supra note 1, at 112. 9. See United Nations CyberSchoolBus, InfoNation: Government Education Expenditure (2004), http://www.un.org/Pubs/CyberSchoolBus/infonation/e_ infonation.htm (estimate for 1997). 10. See The World Bank, Country at a Glance Tables for Vietnam 2004, at 1 (2004), http://www.worldbank.org/data/countrydata/countrydata.html. 11. See UNFPA, The State of World Population 2005, supra note 1, at 108. 12. See UNFPA, Country Profiles, supra note 2. 13. See Id. 14. See UNFPA, Country Profiles, supra note 2. 15. See Social and Demographic Statistics Branch, United Nations Statistics Division, The World’s Women 2000: Trends and Statistics 49 (2000) (estimate for 1991/1997). 16. See Save the Children, State of World’s Mothers 2004, at 38 (2004), http:// www.savethechildren.org/mothers/report_2004/images/pdf/SOWM_2004_final.pdf (estimate for 2004). 17. See United Nations Statistics Division, Millennium Indicators Database (2005), http://unstats.un.org/unsd/mi/mi_series_results.asp?rowId=557 (last updated Mar. 16, 2005) (estimate for 2005). 18. See UNFPA, The State of World Population 2005, supra note 1, at 112 (estimate for 2000-2005). 19. See Id. at 108. 20. See Engenderhealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002) (estimates for 1997). 21. See Id. at tbl. Supp. 2.5, at 56 (estimate for 1997). 22. See World Health Organization (WHO) et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA), 47 (2000) (estimate for 1995). 23. See UNFPA, The State of World Population 2005, supra note 1, at 108. 24. See Save the Children, supra note 16, at 38 (estimate for 1989-2000). 25. See UNFPA, The State of World Population 2005, supra note 1, at 112. 26. See Stanley K. Henshaw et al., The Incidence of Abortion Worldwide, 25 Int’l Fam. Planning Persp. S30–S38 (Supp. 1999), http://www.agi-usa.org/pubs/journals/ 25s3099.html (estimate for 1995-96). 27. See Department of Economic and Social Affairs, United Nations Population Divisions, United Nations World Abortion Policies 1999, U.N. Doc. ST/ESA/ SER.A/178 (1999), http://www.un.org/esa/population/publications/abt/abt.htm (estimate for 1996). 28. See Akinrinola Bankole et al., Characteristics of Women who Obtain Induced Abortion: A Worldwide Review, 25 Int’l Fam. Planning Persp. 68–77 (1999), http://www. guttmacher.org/pubs/journals/2506899.html (statistical figure obtained through incomplete national statistics) (estimates for 1991). 29. See Id. 30. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., UNAIDS/World Health Organization (WHO) Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections – 2004 Update: Vietnam 3 (2004), http://www.who.int/GlobalAtlas/PDFFactory/HIV/EFS_PDFs/EFS2004_VN.pdf (estimate for 2003). 31. See UNFPA, The State of World Population 2005, supra note 1, at 108. 32. See Joint United Nations Programme on HIV/AIDS (UNAIDS) et al., supra note 30. 33. See UNFPA, The State of World Population 2005, supra note 1, at 108. 34. See UNFPA, Country Profiles, supra note 2. 35. See UNFPA, The State of World Population 2005, supra note 1, at 108. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 36. See Id. 37. See UNFPA, The State of World Population 2005, supra note 1, at 108. 38. See Saroj Pachauri & K.G. Santhya, Reproductive Choices for Asian Adolescents: A Focus on Contraceptive Behavior, 28 Int’l Fam. Planning Persp. 186–195 (2002), http://www. agi-usa.org/pubs/journals/2818602.html (estimates for 1997). 39. Bankole et al., supra note 28. PAGE 208 WOMEN OF THE WORLD:

he Socialist Republic of Vietnam is situated in Southeast- (UN) since 1977.20 It is also a member of the Association ern Asia, bordering the Gulf of Thailand, Gulf of Tonkin, of Southeast Asian Nations (ASEAN), the ASEAN Regional T South China Sea, China, Laos, and Cambodia.1 Vietnam Forum (ARF), and the Asia-Pacific Economic Cooperation has existed as an independent state for half a century. In 111 (APEC) forum,21 and holds observer status, while applying for BC, the Chinese Han dynasty conquered northern Vietnam full membership, at the World Trade Organization (WTO).22 and ruled with other Chinese dynasties for the next thousand years.2 Vietnam finally achieved independence under a native dynasty in 939 AD.3 There were civil wars between I. Setting the Stage: the powerful northern and southern families in the 17th and the Legal and Political 18th centuries.4 France began its efforts to seize control of Vietnam in 1858 and colonized the nation in 1885.5 In 1930, Framework of Vietnam the Communist Party of Vietnam waged a protracted revolu- Fundamental rights are rooted in a nation’s legal and political tionary struggle against French colonialism.6 Although Viet- framework, as established by its constitution. The principles nam declared independence after the departure of Japanese and goals enshrined in a constitution, along with the pro- troops in 1945 and created the Democratic Republic of Viet- cesses it prescribes for advancing them, determine the extent nam, French colonial rule persisted until Communist forces to which these basic rights are enjoyed and protected. A con- under Ho Chi Minh defeated the French at Dien Bien Phu stitution that upholds equality, liberty, and social justice can in 1954.7 provide a sound basis for the realization of women’s human As a result of that defeat, France and the Democratic rights, including their reproductive rights. Likewise, a politi- Republic of Vietnam signed the 1954 Geneva Agreement on cal system committed to democracy and the rule of law is Vietnam which ended French colonial rule.8 The agreement critical to establishing an environment for advancing these called for an election in July 1956 to unify the Communist rights. The following section outlines important aspects of North and the non-Communist South under one government; Vietnam’s legal and political framework. however, the South Vietnamese government refused and declared itself the Republic of Vietnam on October 26, 1955.9 A. THE STRUCTURE OF NATIONAL GOVERNMENT A period of extended conflict between North and South The Constitution of Vietnam came into force on April 15, 1992, Vietnam, sometimes termed the Second Indochina War, and was amended on December 25, 2001.23 It establishes a con- followed.10 The United States government’s involvement stitutional republic dominated by the Vietnamese Communist escalated from providing economic and military aid to South Party (VCP).24 Vietnam is a “law governed socialist State of Vietnam to sending troops.11 The United States withdrew its the people, by the people, and for the people.”25 State power armed forces in 1973 following a cease-fire agreement under is vested in the people and exercised through the National the Paris Accords.12 Two years later, North Vietnamese forces Assembly and the People’s Councils under the principle of occupied the South, taking Saigon on April 30, 1975, and democratic centralism.26 The constitution is the supreme law announced the reunification of the country.13 North Vietnam of the land27 and divides Vietnam’s national government into absorbed South Vietnam to form the Socialist Republic of three distinct but interrelated branches: executive, legislative, Vietnam on July 2, 1976.14 and judicial. The constitution “institutionalizes the relation- In 2002, Vietnam’s total population was 80.2 million,15 ship between the Party as leader, the people as master, and of which approximately 50.6% was female.16 The official the State as administrator.”28 The constitution reaffirms the national language is Vietnamese. Other languages include central role of the Communist Party and cites the National English, increasingly favored as a second language; French; Assembly as the highest representative body of the people, Chinese; Khmer; and mountain area languages such as Mon- overseeing all government functions.29 In recent years, the Khmer and Malayo-Polynesian.17 The ethnic composition of National Assembly has been increasingly vocal and assertive Vietnam consists of Vietnamese (85%–90%), Chinese (3%), in exercising its lawmaking authority but remains subject to Hmong, Thai, Khmer (Cambodians), Cham, and about 30 Communist Party direction.30 mountain groups of various cultures and dialects.18 Religions Executive branch practiced in Vietnam include Buddhism, Hoa Hao, Cao The president is the head of state,31 commander of the Dai, Christianity (predominantly Roman Catholic, some armed forces, and chair of the National Defense and Security Protestant), indigenous beliefs, and Islam.19 Council.32 The National Assembly elects him or her from Vietnam has been a member of the United Nations among its members for a five-year term.33 The government is VIETNAM PAGE 209

the executive organ of the National Assembly and the highest determines domestic and foreign policy; decides issues of organ of executive or administrative power. It is composed national defense, security,50 and war and peace; and has the of the prime minister, who is the head of government, the authority to proclaim a state of emergency.51 Once a member deputy prime ministers, the cabinet ministers, and other of the National Assembly has lost the people’s confidence, he members.34 The president, on the basis of resolutions of the or she may be removed from office by his or her electors or National Assembly or its Standing Committee, has authority the National Assembly.52 to appoint or dismiss deputy prime ministers and cabinet The Standing Committee of the National Assembly is the ministers.35 The president also has authority to appoint and permanent representative body of the National Assembly and dismiss vice presidents and judges of the Supreme People’s is composed of its chair, the vice chair, and the members.53 A Court, the deputy head, and members of the Supreme member of the Standing Committee cannot be a member of People’s Office of Supervision and Control.36 The vice the government.54 The Standing Committee calls and presides president, who is elected by the National Assembly from over the election of the National Assembly;55 interprets the among its members,37 assists the president38 and may act as constitution, the law, and decree-laws;56 and supervises and president, in case of the president’s incapacity or vacancy, controls the People’s Councils.57 until a new president is elected.39 The National Assembly elects a Nationalities Council that The prime minister directs the work of the government comprises a chair, a vice chair, and members.58 The council and People’s Councils at all administrative levels and chairs makes proposals to the National Assembly on ethnic issues, cabinet meetings.40 The prime minister has authority to and it supervises and controls the implementation of policies appoint or dismiss vice ministers, and approves the election regarding national minorities.59 and dismissal of the chair and deputy chair of People’s The president, the Standing Committee, the Nationalities Committees of provinces and cities under direct central rule.41 Council, the Committees of the National Assembly, the If he or she finds that they contravene the constitution or government, the Supreme People’s Court, the Supreme Vietnamese law in general, the prime minister may suspend People’s Office of Supervision and Control, the Vietnam or annul decisions and circulars made by cabinet ministers or Fatherland Front and its members, and individual deputies decisions and directives issued by People’s Councils or chairs to the National Assembly may present bills to the National of People’s Committees of provinces and municipalities.42 Assembly.60 Laws and resolutions of the National Assembly The deputy prime ministers assist the prime minister and, in must be approved by more than half of the assembly’s total his or her absence, choose a delegate from among themselves membership.61 Decisions to remove an assembly member, to direct the work of the government.43 to reduce or prolong the assembly’s tenure, or to amend the Legislative branch constitution must be approved by at least two-thirds of the Legislative power rests with a unicameral National assembly’s total membership.62 After the National Assembly Assembly, or Quoc-Hoi. The National Assembly consists adopts a bill, it is signed by the assembly president.63 The of 498 members who are elected by popular vote to serve president of the nation then promulgates the law, which is five-year terms.44 The National Assembly exercises effective no later than 15 days from adoption.64 supreme control over all activities of the state and is the only The fifteen-member Politburo, headed by the Communist organ formally vested with constitutional and legislative Party’s general secretary, determines government policy, powers.45 Deputies to the National Assembly are elected and its nine-person Secretariat oversees day-to-day policy by their regional constituencies to represent their “will and implementation.65 A party congress meets every five years to aspirations.”46 The National Assembly has the right to amend set the direction of the party and the government.66 The 150- the constitution with the approval of at least two-thirds of its member Central Committee, elected by the Party Congress, total membership.47 It also has the power to make and amend meets at least twice a year.67 laws, and to abrogate laws and official written documents that B. THE STRUCTURE OF LOCAL GOVERNMENTS contravene the constitution.48 Regional and local governments The National Assembly has authority to elect and For administrative purposes, Vietnam is divided into fifty-nine remove from office the president; vice president; chair of provinces and five municipalities.68 Provinces are divided the National Assembly; vice chair and members of the into districts, provincial cities, and towns, which are further Standing Committee; prime minister; tribunal president divided into communes, townlets, and wards.69 Municipali- of the Supreme People’s Court; and head of the Supreme ties are divided into urban districts, rural districts, and towns; People’s Office of Supervision and Control.49 The assembly PAGE 210 WOMEN OF THE WORLD:

and urban districts are further divided into wards.70 Prov- supervision and control are subject to the overall leadership inces and municipalities are centrally administered by the of the head of the Supreme People’s Office of Supervision national government. Other administrative divisions are and Control, who serve five-year terms.89 The head of the accountable to the locally elected People’s Councils and their Supreme People’s Office of Supervision and Control appoints People’s Committees.71 and dismisses the heads, deputy heads and members of the People’s Councils are local organs of state power that local people’s offices of supervision and control and of military are composed of elected representatives of the local people offices of supervision and control in military zones. 90 and established in administrative divisions in accordance C. THE ROLE OF CIVIL SOCIETY AND with the law.72 People’s Councils pass resolutions for the NONGOVERNMENTAL ORGANIZATIONS (NGOS) implementation of the constitution and national laws, and for Individual membership and voluntary participation in a the improvement of people’s living conditions.73 A People’s variety of social groups and certain state-controlled groups Council member may be removed by the electors or by other is common in Vietnam. However, these groups have lim- council members in the event of a loss of public confidence.74 ited influence over policy on the local and national levels. The People’s Committees are elected by the People’s Councils Studies reveal that 25%–30% of the Vietnamese population and are the latter’s executive organs.75 The chair of the People’s is associated with women’s groups and almost 15% belong to Committee gives leadership and operational guidance to the voluntary health groups.91 Less than 5% of the Vietnamese activities of the People’s Committee.76 population is associated with human rights and development Judicial branch groups.92 The high level of social group membership in Viet- The constitution establishes an integrated hierarchical nam is attributed to the government’s efforts to mobilize par- system of courts composed of the Supreme People’s Court, ticipation in state-controlled groups such as youth groups and local People’s Courts, military tribunals, and other tribunals women’s groups.93 Some social scientists have noted that the established by law.77 The Supreme People’s Court is the highest doi moi (renovation or renewal) reforms, a broad reform effort judicial organ.78 It is headed by the tribunal president, who is introduced in 1986 to transform Vietnam’s economy into a elected by the National Assembly upon the recommendation market economy, along with the process of social moderniza- of the president for a five-year term.79 The Supreme People’s tion in general have contributed to the development of civil Court hears appeals from the local People’s Courts.80 It society in Vietnam.94 supervises and directs the judicial work of Special People’s Courts and military tribunals.81 The Supreme People’s Court D. SOURCES OF LAW AND POLICY has ten Special Courts, including three appeal divisions and a Domestic sources Central Military Court.82 The appeal divisions hear appeals Sources of domestic law include the constitution and enact- from the Provincial and City People’s Courts, and from ments by the National Assembly. Other forms of legislation, the District People’s Courts.83 The three appeal divisions such as decrees, instructions, circulars, regulations, and ordi- also act as trial courts for Hanoi, Da Nang, and Ho Chi nances,95 made by an authorized person under legislative or Minh City.84 The Provincial and City People’s Courts have constitutional authority, are also an important source of Viet- original jurisdiction over cases beyond the jurisdiction of the namese law. The Vietnamese legal system is based on com- District People’s Courts and appellate jurisdiction over cases munist legal theory and the French civil law system.96 The decided by the District People’s Courts. District Courts hear Civil Code, effective since 1996, is a comprehensive codifica- criminal cases where punishments do not exceed seven years’ tion of Vietnamese laws, including a separate codification for imprisonment. Cases arising from economic contracts are family law.97 The code of civil commercial procedure is based subject to a separate arbitration system.85 Judicial decisions on French civil procedure and colonial civil and commercial are binding on a case-specific basis and are not subject to legislation.98 Customary laws of ethnic minorities that are not constitutional review.86 contrary to existing laws are also recognized.99 The Supreme People’s Office of Supervision and Control The constitution promotes a socialist-oriented economy ensures obedience of the law by ministries, local organs based on a system of ownership by the entire population, of power, economic bodies, social organizations, people’s including collectives and private individuals.100 It guarantees armed units, and citizens.87 It exercises the right to initiate respect for human rights101 and recognizes citizens’ duties to the public prosecutions and ensures a serious and uniform state and society.102 The constitution guarantees equal rights implementation of the law.88 The heads of local offices of between men and women in political, economic, cultural, supervision and control and the heads of military offices of and social fields and in the family.103 It also guarantees equal VIETNAM PAGE 211

pay for equal work and bans all acts of discrimination against policies reflect a government’s commitment to advancing the women and all acts damaging women’s dignity.104 reproductive health status and rights of its citizens. The fol- The constitution promotes the creation of conditions lowing sections highlight key legal and policy provisions that that raise women’s qualifications in all fields, including the together determine the reproductive rights and choices of development of maternity homes, pediatric departments, women and girls in Vietnam. crèches, and other social welfare units to lighten house work A. GENERAL HEALTH LAWS AND POLICIES and allow women to engage more actively in work and The constitution requires the government to provide for study.105 It further protects marriage and the family106 by health initiatives in both its budget and economic plan- requiring marriage to conform to the principles of free consent, ning processes.121 It also enjoins the state to organize health progressive union, monogamy, and equality between husband insurance and create the necessary conditions for all citizens and wife, and it protects children against discrimination.107 to enjoy health care.122 The constitution requires the state It is the responsibility of the state, society, the family, and the to invest in, ensure the development of, and oversee the citizen to implement the nation’s population program and protection of the people’s health.123 In particular, preven- family planning policies.108 tion is to be combined with treatment, as are traditional The constitution guarantees freedom of opinion and speech; and modern medicine.124 The constitution emphasizes that freedom of the press; the right to be informed; and the rights priority will be given to the health care of highlanders and to assemble, form associations, and hold demonstrations.109 national minorities.125 It guarantees freedom of belief and religion, provides that Long-term policies and strategies for the health sector all religions are equal before the law, and protects against are established through five- and ten-year plans as well as in misuse of beliefs and religions to contravene the law and state specific decrees issued by the Government of Vietnam and/ policies.110 The constitution guarantees the inviolability of the or the Ministry of Health.126 In 2001, the Government of person and the protection of life, health, honor, and dignity. It Vietnam released a Ten Year Socio-Economic Development forbids harassment, coercion, torture, and violations of honor Strategy (SEDS) for 2001–2010.127 The overall objective of or dignity.111 SEDS is “to bring [the] country out of underdevelopment; International sources improve noticeably the people’s material, cultural and spiritual The constitution authorizes the president to sign treaties life; and [to] lay the foundations for [becoming] … a modern- or international agreements.112 Such agreements become oriented industrialized country by 2020.”128 In conjunction valid and effective when ratified by the National Assembly.113 with SEDS, the government also released the Strategy for Vietnam has ratified the following international human People’s Health Care and Protection129 and the National rights instruments: the Convention on the Elimination Strategy for Reproductive Health Care, among others.130 of All Forms of Discrimination against Women;114 the Objectives Convention on the Rights of the Child;115 the International The Strategy for People’s Health Care and Protection Covenant on Economic, Social, and Cultural Rights;116 the established the following key goals to be met by 2010: International Covenant on Civil and Political Rights;117 the ■ increase life expectancy to 71 years of age; International Convention on the Elimination of All Forms ■ improve the quality of life by reducing the spread of of Racial Discrimination;118 the Optional Protocol to the preventable infections and diseases; Convention on the Rights of the Child on the involvement ■ assure equal and effective access to health-care ser- of children in armed conflict;119 and the Optional Protocol to vices for all citizens, especially for the treatment of the Convention on the sale of children, child prostitution and disease; child pornography.120 ■ improve the quality of health care for disease prevention, treatment, and rehabilitation; and II. Examining ■ reorganize the health sector to reflect the country’s new model of socioeconomic development.131 Reproductive Health In 2002, the government introduced the Comprehensive and Rights Poverty Reduction and Growth Strategy,132 which outlines SEDS’s specific goals and the steps that must be taken to In general, reproductive health matters are addressed through realize them. They include the following: a variety of complementary, and sometimes contradictory ■ promote the grass-roots health system; laws and policies. The scope and nature of such laws and PAGE 212 WOMEN OF THE WORLD:

■ maintain and develop community health services; distribution of pharmaceuticals, physician training, medical ■ prioritize protection from health problems that affect research, and the establishment of fee scales for private health- low-income communities, including child malnu- care facilities.143 trition, HIV/AIDS, diseases that affect reproductive Occasionally, the Government of Vietnam addresses health, and infectious diseases; specific health concerns through specially created bodies ■ improve the quality of health services; that are separate from the Ministry of Health. For example, ■ ensure that the poor have access to quality health ser- in 1993 the government created the National Committee vices; and for Population and Family Planning, which develops and ■ provide health-service subsidies to low-income popu- implements national population and family planning strategies 133 lations. on behalf of the government.144 Significant changes in the health system took place in 1986, Health bureaus are responsible for planning health services when the Government of Vietnam launched doi moi reforms. in the provinces. In 2001, there were 61 provincial health The doi moi campaign shifted Vietnam from a centralized bureaus, each of which provided services for anywhere from economy to a decentralized “socialist-oriented market 250,000 to 5 million people.145 134 economy” and sparked the development of the private sector. In 2000, there were a total of 698 general hospitals, 71 As a result of privatization, fees for health-care services were specialized hospitals, 10 research institutes, 45 traditional 135 introduced and the quality of public health care declined medicine hospitals, 1,009 specialized clinics, and 41 regional 136 due to the lack of funding by local governments. Although maternity homes.146 Each province has one large general these reforms have improved the general quality of life in hospital with two hundred to one thousand beds147 and in 137 Vietnam, 28 million people still live below the poverty line. most cases seven departments: emergency care, internal Furthermore, since the doi moi reforms, use of public health- medicine, obstetrics and gynecology, surgery, pediatrics, care services has declined significantly, and there are increasing infectious diseases, and traditional medicine. The hospital inequalities in health-care provision between geographical serves as a referral center for the entire province. regions and population groups, mainly due to the high cost of A district health center serves each of the 631 towns or 138 health care and the lack of facilities in remote areas. districts in Vietnam. Each district has one general hospital Infrastructure of health-care services with a laboratory. Usually, a mother and child care and family Government facilities planning unit is also attached to the hospital.148 District The public health-care system is divided into four tiers: hospitals accept referrals from commune health centers the Ministry of Health, provincial health bureaus, district (CHCs), which are staffed by three to five people who are health centers, and commune health centers. The Ministry selected by the local community and trained by the hospital.149 of Health formulates and implements national health policies In 2002, Vietnam had 11,103 CHCs.150 The head of the CHC and manages the public health-care system. The ministry’s may be an assistant physician or a nurse who in some centers policy department develops health policy in conjunction may be assisted by a pharmacist. At times, the core team will with the Committee on Health Strategies, a senior-level body include an assistant physician in traditional medicine, a public chaired by the Minister of Health. In addition, the ministry health worker, and another nurse. In exceptional cases, there works with several specialty institutes, such as the Institute for will be a physician on staff.151 the Protection of Mothers and Newborns. These institutes Government facilities are staffed by a large number of function as tertiary care referral centers as well as professional public health workers, with an average of 5.65 doctors and 139 training and medical research centers. The Ministry of 22.37 beds per ten thousand people in 2002.152 In recent Health works with a number of committees, including the years, the government has promoted the use of village health National Committees for the Prevention and Control of workers in remote areas. These workers have no formal HIV/AIDS and for the Prevention and Control of Narcotics medical training, but receive basic training from provincial 140 and Prostitution. In addition, the ministry routinely issues health bureaus that enables them to address the daily health norms and regulations on reproductive health and family care needs of the local community. Village health workers are 141 planning services. It also regulates the conditions and also trained to provide basic health education and assist with norms of private medical practices, and administers medical antenatal care and family planning programs.153 licensing and certification for government-approved private, Privately run facilities semipublic, nongovernmental, and foreign-financed medical In 1986, the Government of Vietnam approved the use of 142 facilities. The ministry oversees the manufacture and private health-care facilities.154 Private providers fall into two VIETNAM PAGE 213

categories: full time providers who own their practice facilities health centers, also disappeared. Commune health centers and part-time private providers who are also on staff at public were forced to turn to less reliable sources of funding, which health facilities.155 In 1993, the government enacted the in turn lessened the quality of and limited the accessibility Ordinance on Private Medical and Pharmaceutical Practice, of health-care services. Meanwhile, the number of private which governs the private practice of health-care services and health-care facilities and providers grew at a pace that establishes ethical requirements.156 The Ministry of Health surpassed the government’s ability to regulate them.172 and provincial health bureaus oversee private health-care As a result of these problems, the government tried providers and facilities, including pharmacies.157 to counteract the erosion of health care.173 One of its first There is limited information about the size of the private initiatives was the 1993 Ordinance on Private Medical and health-care sector. In 1998, the Ministry of Health reported a Pharmaceutical Practice, which entitled the government to total of 34,018 privately run health-care facilities, 70% of which collect user fees in public hospitals to help finance its health- were in urban areas.158 In 1999, the government estimated care program.174 In 1989, a system of user fees was introduced that 12% of private health-care facilities were unlicensed.159 in national, provincial, and district health-care systems.175 The During the initial stage of the doi moi reform process, annual fee structure was revised in 1995 to correspond to the type of individual public use of medical services declined dramatically facility and the nature of the service.176 from 2.3 visits in 1984 to only one visit in 1990.160 A number Vietnam finances health care in three ways:

of factors contributed to the decline, including the poor quality ■ government ﬁnancing based on general tax revenues;

of services, the rapid—and minimally regulated—growth of ■ out-of-pocket payments; and

costly private health-care services, the widening gap between ■ government and private health insurance programs.177 rich and poor, and the imposition of hospital fees.161 Since In 1992, the Vietnamese government introduced health-sector reforms were introduced in 1992,162 the quality mandatory and voluntary health insurance schemes that are of medical services has improved and rising living standards administered by Vietnam Health Insurance (VHI) under have led more people to seek health-care services.163 The the supervision of the Ministry of Health. These insurance average number of visits to public medical facilities per capita schemes cover 16% of the Vietnamese population;178 of that increased from one visit per year in 1990 to 1.72 visits in group, 62% are members of the mandatory scheme, 30% 2000.164 According to a 1998 government survey, wealthy are members of the voluntary scheme, and 8% are covered individuals make the most use of both private and public by government-subsidized programs.179 The mandatory health-care facilities.165 health insurance scheme covers all civil servants (active and Financing and cost of health-care services retired) and salaried workers of businesses with ten or more Government financing employees. Employers pay a premium of 3% of total wages In addition to requiring the government to provide for and employees pay 1% of total wages. However, only 13% health initiatives in both its budget and economic planning of workers in the private sector are currently covered under processes,166 the constitution also enjoins the state to organize the scheme, and their coverage remains inadequate, especially health insurance and create the necessary conditions for among self-employed people and informal sector workers all citizens to enjoy health care.167 In 2002, the estimated and their families.180 Voluntary insurance schemes include national total public health expenditure was 1.35% of the the School Health Insurance Scheme, which covers school gross domestic product (GDP).168 This is significantly children and higher education students and is administered lower than state expenditure for other areas, such as public by educational institutions and the provincial Ministries of education.169 Similarly, state health-care expenditure as Education; and the Farmer Voluntary Insurance Scheme, a percentage of GDP is also lacking compared with other in which provincial governments pay 70% of the premiums areas.170 According to experts, the lower state expenditure while farmers contribute 30%.181 The government also reflects the development of the private health-care sector provides fully subsidized schemes to people in poverty under following the 1986 doi moi reforms.171 the Free Health Card for the Poor program.182 The doi moi reforms that eliminated the fully subsidized Private and international financing health-care system also eliminated agricultural work brigades, Various national and international organizations, including which had been responsible for funding commune health United Nations agencies, provide significant assistance for centers and were long considered to be the backbone of the many of Vietnam’s health and family welfare programs. For health-care system. With their demise, brigade nurses, who instance, the World Health Organization (WHO), United had been charged with assisting medical staff at commune Nations Children’s Fund (UNICEF), and other bilateral donors PAGE 214 WOMEN OF THE WORLD:

contribute to the country’s Reproductive Health Programme the government’s intention to shift health-care costs from the and the HIV/AIDS Programme. Other major donors to the state to the individual consumer.193 health sector include the governments of Australia, Belgium, The government has exempted certain groups from paying France, Japan, the Netherlands, and Sweden.183 user fees, including the following:

Cost ■ war veterans;

Individual citizens have largely shouldered the costs of ■ indigent individuals;194

health care through out-of-pocket payments, which are fees ■ families or parents of children killed during the war that patients pay directly to health-care professionals at the who receive monthly allowances;

time of treatment.184 In 2001, out-of-pocket health payments ■ minority groups living in the highland;

represented 87.6% of health-care costs nationwide.185 These ■ government workers, army personnel and their payments covered public health-care user fees, informal charges dependents, and vocational school students;

at public health facilities, private payments, and drug costs.186 ■ individuals with disabilities or mental illnesses;

Providers of public health facilities can decide what level ■ working people and their families who move to new of fees to charge, and because their salaries are subsidized by economic zones;195 and

user fees, they often discriminate against patients who are ■ orphans and children under the age of ﬁve.196 exempted from fees or covered by health insurance.187 In The Labour Code provides exemptions from hospital fees general, uninsured patients, or those who are not eligible for fee for the following individuals:

exemptions, must pay for services before they are rendered.188 ■ persons with disabilities, orphans, or elders who have All patients are expected to purchase their own medications no means of support;

at a public or private pharmacy.189 Those who cannot afford ■ children under the age of six;

user fees, informal charges, or the cost of pharmaceuticals ■ persons who suffer neurosis, epilepsy, leprosy, or are denied access to health care.190 The Ministry of Health tuberculosis;

recently submitted a proposal to the Government of Vietnam ■ minority groups who live in the highlands; and

to increase user fees at state-run hospitals and clinics. If ■ patients who are extremely poor.197 approved, the burden of patient spending is expected to In addition to these exemptions, the government has increase by 30%.191 established preferential health policies for migrant workers.198 In 1989, the government began regulating the collection Regulation of drugs and medical equipment of hospital fees, including those for patient beds, sanatorium The manufacture, sale, and distribution of drugs and medical stays, medication, blood work, tests, X-ray ﬁlms, and other devices are regulated by the Ministry of Health through technical services. Several key components of Decrees No. the Vietnam Drug Administration Department. Foreign 95/CP and No. 33/CP address the allocation of hospital fees. companies provide more than 60% of all prescription drugs States are expected to use hospital fees as a source of revenue in the country.199 Between 2003 and 2004, the price of drugs to be allocated as follows: went up by almost 10%.200 To counter unreasonable price

■ The collector will receive 70% of fees to help cover increases that would make medical treatment unaffordable, the expenses related to medicine, blood, transfusion solu- drug administration department in 2005 prohibited foreign tion, chemical products, X-ray ﬁlm, and other mate- companies that manufacture and trade drugs in Vietnam from rial and equipment for patient care; and raising drug prices without obtaining permission from the

■ Thirty percent of fees will go to a reward fund for out- Ministry of Health.201 standing medical workers who have demonstrated a Regulation of health-care providers high degree of responsibility toward their patients; Several laws and corresponding statutory bodies regulate

■ Two percent to five percent of this money will be set health-care providers in Vietnam, including their education and aside for hospitals that are unable to collect fees and for professional conduct. The 2003 Ordinance on Private Medical outstanding workers or establishments at the national and Pharmaceutical Practice regulates private health-care level, such as at the Ministry of Health.192 professionals. Pursuant to the ordinance, practitioners are required Since their introduction, the government has relied to carry out their professional and technical responsibilities in increasingly on user fees collected at public health facilities to accordance with regulations issued by the Ministry of Health finance the country’s health care. Recent decrees No.10/2002/ and serve their patients with the utmost care.202 ND-CP and No. 25/2002/TT-BTC regarding financial The ordinance prohibits these practitioners from doing the regulations for revenue-raising public service facilities reflect following: VIETNAM PAGE 215

■ selling medicine or providing services that have not Patients’ rights been approved by the Ministry of Health; Citizens of Vietnam are free to choose the treatment they ■ selling medicine that is improperly packaged; and wish to undergo.218 Under the 2003 Ordinance on Private ■ failing to comply with regulations outlined in the pri- Medical and Pharmaceutical Practice, medical practitioners 203 vate medical practice or pharmacy certificates. can be held liable for illegal acts resulting in injury to a patient The constitution obliges the Government of Vietnam to and may be required to pay compensation.219 develop traditional medicine and to integrate it with modern Additionally, the Penal Code adopted in 2000 provides 204 medicine and pharmacology. One way the Government recourse for breaches of medical duty. Medical practitioners of Vietnam supports traditional medicine is through who violate regulations for medical examination and training. For example, there are three medical schools, two treatment, production, preparation, supply, sale of drugs, pharmaceutical colleges, and two secondary schools that or other medical services and cause a loss of life or serious focus on traditional medicine. Other government initiatives damage to another’s health are punished with one to five include training health workers at the community level to years’ imprisonment.220 Depending on the seriousness of use traditional medicine and encouraging citizens to plant the consequences of a wrongful act, the wrongdoer can be 205 medicinal vegetables, fruits, and plants. Traditional sentenced to three to ten years’ imprisonment or seven to medicine may be practiced by medical doctors who receive fifteen years’ imprisonment.221 A practitioner may also be special training in medical school, or by traditional medicine required to pay a fine of up to VND 50 million (USD 3,306), 206 practitioners who have no formal education or training. and/or may be removed from his or her post or be barred In 1989, the government first attempted to regulate from practicing his or her profession.222 practitioners of traditional medicine by passing public health legislation which subjects the practice of traditional B. REPRODUCTIVE HEALTH LAWS AND POLICIES medicine to government oversight and lays out guidelines for In 2001, the Ministry of Health formulated a National Strategy ensuring appropriate conditions in facilities where traditional on Reproductive Health Care,223 which is the primary gov- medicine is practiced.207 Regulations enacted in 1991 specify ernment policy on reproductive health.224 During the 1990s, qualifications for traditional medicine practitioners and the government’s focus was on maternal and child health care. detail the types of permissible treatment methods; they also In the view of the ministry, Vietnam required “a reproductive contain criminal sanctions for breaches of the regulations health strategy to provide health care to the people, particu- that result in serious harm to a person’s life or health.208 larly to women, mothers, and children, in a broader sense and An assessing committee established by the government with a more comprehensive approach.”225 The strategy, it was issues licenses to these practitioners.209 Practitioners are noted, had to be consistent with the principles set forth in the required to secure approval from the government and the United Nations International Conference on Population and Traditional Medicine Association before employing new, Development (ICPD) Programme of Action.226 unapproved treatments.210 In addition, licensed traditional The goal and objectives set out in the strategy are based on medicine practitioners are restricted to practicing in certain the following principles: geographical areas and health-care facilities.211 The practice ■ Investment in health care, including reproductive of traditional medicine based on superstition is barred.212 health, is also an investment in the continuing devel- The 2003 Ordinance on Private Medical and opment of the nation; Pharmaceutical Practice contains provisions for regulating ■ All people should have equal access to information the practice of traditional medicine by private practitioners.213 and services. In this regard, particular attention must Private practitioners must be medical doctors or assistant be paid to disadvantaged groups, the poor, those who doctors specializing in traditional medicine and have rendered meritorious services to the country, and practiced traditional medicine for a minimum of five inhabitants of mountainous, remote, and environ- years.214 They may only engage in activities related to mentally sensitive areas; traditional medicine for which they have been certified ■ Gender equality should be ensured. This involves an and must obtain government permission before using new awareness of women’s roles in making decisions about treatment methods or drugs.215 They may not base their reproductive health issues and men’s roles and respon- practice on superstition.216 Administrative, disciplinary, sibilities in family planning and reproductive health; and criminal sanctions may be imposed for breaches of the ■ A more active role should be taken with respect to ordinance.217 preventive aspects of reproductive health and repro- PAGE 216 WOMEN OF THE WORLD:

ductive health care; under ﬁve to 20%.230

■ Modern medicine and traditional medicine should be The strategy outlines a number of policies that the combined; and government may implement in pursuit of its goals, including

■ Reproductive health care is a societal concern and a those that:

shared responsibility.227 ■ encourage the acceptance of small families;

To improve the reproductive health status of women and ■ promote the equal treatment of children of both narrow the disparities between regions and certain groups,228 sexes;

the strategy identiﬁes the following tactics: ■ encourage the use of a wide range of contraceptive

■ generate a better understanding of the components methods;

and objectives of reproductive health care to secure ■ provide incentives to health-care practitioners to more support and commitment from the general work in underserved areas;

public and government ofﬁcials; ■ increase subsidization of health-care services;

■ sustain declining fertility rates, reduce the number of ■ promote reproductive health education for adults; unwanted pregnancies and abortion-related compli- and

cations, and ensure the rights of women and couples ■ increase government regulation of reproductive to have children or choose contraceptive methods of health-care services.231 good quality; The 2001–2010 National Strategy for the Advancement of

■ improve the health status of women and mothers by Women, formulated by the Government of Vietnam, highlights continuing to reduce high rates of maternal mortality the importance of advancing women’s rights and health and morbidity, perinatal deaths, and infant mortality, through education, investment in the health infrastructure of particularly among low-income populations; underserved communities, and full participation by men in

■ reduce the incidence of reproductive tract infections family planning and women’s health needs in general.232 and sexually transmissible infections through preven- Vietnam’s 2003 Ordinance on Population also has speciﬁc tive methods and offer appropriate treatment when objectives and policies related to reproductive health. Relevant they occur; strategies include the following:

■ improve reproductive health care for the elderly, par- ■ ensure that women have the right to decide when to ticularly for older women, and provide early diagnosis have a child, the number of children and the spacing and treatment of breast cancer and other cancers of between births; and

both male and female reproductive tracts; ■ ensure that women have the freedom to choose con-

■ advance the sexual and reproductive health of adoles- traceptive methods according to individual needs and cents through age-appropriate education, counseling, preferences.233 and health care; and The state has also developed policies intended to aid

■ educate men and women about sexual relations and low-income ethnic minorities. These include programs sexuality so that they can fully exercise their rights for socioeconomic development, hunger eradication, and and responsibilities in regard to fertility, have safe and poverty alleviation as well as services intended to improve responsible sexual relations based on equality and the community’s reproductive health, family planning, and mutual respect, and generally improve their repro- “population quality-raising services.”234 ductive health and quality of life.229 Regulation of reproductive health technologies The strategy contains the following targets for key health Vietnam’s ﬁrst in vitro fertilization birth took place in 1998. indicators: By March 2003, 1,090 such births had occurred. In 2002,

■ reduce the fertility rate to 2.0 children for women of there were 86,279 infertile couples (0.63% of all couples) in reproductive age; Vietnam.235 Measures to prevent infertility and access to

■ reduce the maternal mortality rate to 70 per 100,000 treatment through advanced technologies are very limited.236 live births; In its National Strategy on Reproductive Health Care for

■ reduce the infant mortality rate to 25%; the 2001–2010 Period, the government pledged to work

■ reduce the perinatal mortality rate to 18%; towards the prevention and treatment of infertility, in part

■ reduce the percentage of low birth weight babies by introducing laws regulating the donation and reception (under 2500 grams) to 6%; and of ova, sperm, and embryos, and other issues concerning in

■ lower the malnutrition rate among children vitro fertilization.237 VIETNAM PAGE 217

A decree issued on January 12, 2003, prescribes conduct reported using a modern method.253 Government sources for infertile couples and single women who seek to use estimate that 38.3% of women use IUDs, 17.42% practice assisted reproductive technologies (ART); sperm donors withdrawal, 15.33% follow the “rhythm/safe period” method, and recipients; ovum donors and recipients; embryo donors 6.08% depend on condom use by their spouses, and 3.69% use and recipients; and ART facilities.238 Sperm donors must be oral contraceptives.254 between 20 and 55 years of age and ovum donors must be Contraception laws and policies between 18 and 35 years of age. Sperm, ovum, and embryo All forms of contraception are legal in Vietnam. The recipients must be between 20 and 45 years of age. Donors Ordinance on Population prohibits activities involving and recipients are required to be physically ﬁt and free of “producing, dealing in, importing, and supplying disease.239 Foreigners can use in vitro fertilization services contraceptive devices which are fake, fail to satisfy quality but are prohibited from donating or receiving ova, sperm, standards, have expired, or have not yet been” approved by or embryos.240 The new law bans all human cloning and the government.255 surrogate motherhood.241 A population ordinance which The ordinance further urges individuals and organizations came into effect in 2003, also obliges the government to invest to provide contraceptive devices and/or family planning in and to encourage organizations and individuals to devote services. Family planning providers are responsible for resources to improving ART.242 This ordinance also bans ensuring the safety and quality of their contraceptive devices human cloning.243 and services, and must monitor and treat any adverse effects Family planning of their services.256 General policy framework The 1989 Law on Protection of People’s Health also In 1989, the government enacted the Law on Protection contains provisions on family planning, and it recognizes the of People’s Health.244 Article 43(2) directs the state to use duty of all persons to implement the government’s family incentives, policies, and measures “to create the necessary planning program and choose their preferred method of conditions” to implement a reduced family size policy,245 but contraception. The law also establishes a small family norm, prohibits “all acts of preventing or forcing the implementation stating that couples should have one to two children.257 It of family planning.”246 It directs obstetric and gynecological instructs the state to develop policies, introduce measures, and care providers and facilities to “respect everyone’s desire to use create the necessary conditions for proper implementation the method of birth control of their own choosing.”247 of the family planning program.258 It encourages public In the past decade, the government has introduced health, educational, and cultural facilities as well as the a number of laws and policies regarding family planning. media and social organizations to widely disseminate family The government recently embraced a National Population planning information.259 Strategy for the Period 2001—2010, which replaces Sterilization is not a commonly used form of contraception Vietnam’s ﬁrst population strategy, adopted in 1993.248 The in Vietnam.260 About 6.3% of females and 1% of males undergo current strategy is wider in scope than the earlier one and sterilization.261 The law provides incentives to people to is linked to ICPD goals, identifying population issues as undergo sterilization procedures.262 Men are given an allowance key to the country’s social and economic development.249 equaling 40 kilos of rice and are exempted from public labor for The National Strategy for Reproductive Health Care for one year. Male civil servants (cadres) receive a month’s worth of the Period 2001–2010 and the Comprehensive Poverty salary and a leave of seven days with full pay.263 Reduction and Growth Strategy also detail the government’s With their consent, women who have at least two children family planning strategies.250 (See “Population” for more are eligible to have sterilization procedures provided free information.) of charge by the government.264 Women who undergo Contraception sterilization are given an allowance equaling 40 kilos of rice National-level data from 1997–1998 indicates that and are exempted from public labor until the end of their 99.48% of female respondents claim to have heard of or to working age. If the woman is a civil servant, she is entitled know about contraceptive measures.251 In 2003, 78.5% of to a leave of 20 days with full payment.265 The use of IUDs Vietnamese women in the reproductive age group (15–49) is encouraged, and in some instances women are offered used some kind of contraceptive method and 56.7% used monetary incentives to use IUDs.266 modern contraceptive methods.252 This is a notable increase Regulation of information on contraception in the use of contraceptive methods since 1990, when only There are no formal restrictions on the advertisement of 53.2% reported using some kind of birth control and 35.3% contraceptives. PAGE 218 WOMEN OF THE WORLD:

Government delivery of family planning services more often than rural women, and women with higher levels The constitution charges “the State, society, the family of education receive checkups more frequently than those and the citizen to ensure care and protection for mothers and who are less educated.279 children; [and] to carry into effect the population program Laws and policies and family planning.”267 The government’s service network A key objective of the National Reproductive Health Care for family planning operates at these four levels: Strategy for 2001–2010 is to reduce maternal mortality and

■ the “Basic Line,” composed of intercommune centers morbidity. The strategy aims to achieve the following goals for family planning; by the year 2010:

■ the “District Line,” composed of family planning ■ increase the percentage of women who receive prena- teams, obstetric facilities, and a central hospital; tal care to 90%;

■ the “Provincial Line,” composed of maternal and ■ increase the percentage of pregnant women receiving child health-care centers, family planning ofﬁces, and at least one postnatal checkup to 60%;

obstetric and provincial hospitals; and ■ increase the percentage of deliveries at health facilities

■ the “Central Line,” composed of hospitals and centers to 80%;

for research and specialized technical training.268 ■ reduce maternal mortality rate to 70 deaths per The Ministry of Health organizes and guides the 100,000 live births; and

implementation of the program for reproductive health ■ reduce the rate of obstetric complications as a per- care and family planning, and strengthens the network that centage of total deliveries by 50%.280 provides reproductive health care and family planning services The National Strategy for Advancement of Women to the wards and communes.269 in Vietnam for the Period 2001–2010 also establishes the Family planning services are delivered primarily through following targets for maternal health:

the family planning network and with the direct support of ■ increase the percentage of women receiving three family, village, commune levels, maternity houses, clinics, and prenatal checkups to 60%; and

district hospitals.270 ■ increase the percentage of medical establishments The 1989 Law on Protection of People’s Health requires the with obstetric nurses to 80%.281 Ministry of Health to strengthen and expand “the network Delivery of services of obstetrics and newborn health care down to the grassroots The 1989 Law on Protection of People’s Health guarantees in order to ensure medical care for women.”271 Public health women the right to obstetric and gynecological care and facilities and individual practitioners that provide obstetric obliges the Ministry of Health to strengthen and expand and gynecological care are also directed by the law to respect the network of obstetrics and newborn health care to the the right of individuals to choose their preferred method of grassroots level to promote women’s health.282 birth control.272 Village health workers are responsible for identifying Family planning services are also provided in private clinics pregnancies, providing ﬁrst aid for common obstetric and by NGOs. However, according to a survey, 88% of those conditions, instructing mothers about proper nutrition who use contraception rely on the state, not the private sector, during pregnancy and breastfeeding, encouraging pregnant to provide it.273 women to seek prenatal care and deliver in health facilities, Maternal health assisting in normal deliveries, and making periodic visits In 2003, Vietnam’s maternal mortality rate was 130 deaths to mothers and newborns.283 Commune Health Centers per 100,000 live births.274 This is a signiﬁcant decrease from (CHCs) and maternity homes provide prenatal care, iron the rate of 200 per 100,000 in 1990. Between 1990 and 1999, and folic acid supplements, tetanus toxoid vaccinations, the percentage of obstetric complications during pregnancy breastfeeding and nutrition instructions, and neonatal care; decreased by 52%.275 However, there are studies that show perform normal deliveries and perineum surgeries; manage that the percentage of pregnant women receiving prenatal minor obstetric complications; and identify high-risk care decreased from around 73% in 1990 to about 68% in pregnancies for referral to higher level health facilities.284 2003.276 Seventy percent of births in 2002 were attended by District health centers offer further maternal health-care health professionals, down from 90% in 1990.277 services including management of high-risk pregnancies, The Ministry of Health recommends that pregnant treatment of eclampsia, hemorrhages, and ectopic women receive at least three prenatal checkups.278 However, pregnancies, and cesarean sections. Provincial general and women in urban areas generally receive prenatal checkups obstetric hospitals and national-level facilities have the VIETNAM PAGE 219

additional responsibility of diagnosing fetal abnormalities by the Ministry of Health or local health bureau.298 and treating serious obstetric conditions.285 Medical establishments and practitioners that terminate Safe abortion pregnancies are required to have professional certificates It is estimated that the average Vietnamese woman has issued by the Ministry of Health.299 Failure to comply with 2.5 abortions during her lifetime.286 This rate of abortion this requirement is a violation of the Penal Code.300 is among the highest in the world and reflects the lack of Public health facilities at all levels provide counseling adequate access to safe and affordable family planning services on safe abortion to women and adolescents. National, throughout Vietnam.287 For women aged 15–19, the rate of provincial, and district health facilities as well as maternity abortion is significant at 13.4%, and for those aged 25–29 it homes and intercommune polyclinics staffed with an increases to 24.9%.288 The overall abortion rate declined from obstetrician may perform abortions by D&C (Dilation and 14.8% in 1998 to 10.8% in 2002, most noticeably in urban areas. Curettage) or vacuum aspiration on women who are less However, regional disparities exist: abortion rates remain high than 12 weeks pregnant.301 in the northwest part of the country (44.5%) and low along HIV/AIDS and other sexually transmissible infections (STIs) the south central coast (2.8%).289 In 2002, approximately 8% The cumulative number of HIV infections at the end of 2003 of women who had abortions—primarily those from rural was estimated at 220,000, of which 20,000 were children.302 areas—suffered some type of postoperative complication. The Between 2001 and 2003, the prevalence of HIV/AIDS among most common complications are bleeding (2.5%), infection 15- to 49-year-olds increased from 0.3% to 0.4%.303 New (2%), and uterine rupture (0.5%).290 HIV cases are also on the rise, especially among adolescents, Abortion laws and policies intravenous drug users (IDUs), and sex workers.304 According Abortion is legal in Vietnam. The 1989 Law on Protection to the Ministry of Health, there were 14,460 new cases reported of People’s Health recognizes a woman’s right to decide in 2003 compared with 9,501 new cases in 2002,305 and 40 to to have an abortion.291 In an effort to better guarantee 120 Vietnamese become HIV infected every day.306 The World quality medical care for women, including access to safe Health Organization listed HIV/AIDS as the fifth leading cause abortion services, the law requires the Ministry of Health to of death in 2002.307 Almost 60% of new HIV infections in 2003 standardize the quality of care and increase access to obstetric were among IDUs and 3% were among sex workers; since 1999, and newborn health-care centers throughout the country, about 40% of all reported HIV cases have been reported among even in the smallest communes.292 youths aged 15 to 24.308 Although the current incidence of HIV Under the Penal Code, any person who causes a pregnant infection by sexual transmission is low compared with IDUs, woman to miscarry or whose conduct results in serious harm who account for 57% of reported HIV cases, it is on the rise and to a woman’s health may be punished with imprisonment is expected to become the dominant mode of HIV transmission ranging from five to fifteen years.293 The offender can also in the next decade.309 be fined from 5 million to 50 million VND (USD 330 to Laws and policies USD 3,306), and may concurrently be removed from his or The principal national-level law relating to HIV/AIDS is her position and/or banned from the practice of medicine for the 1995 Ordinance on the Prevention and Fight Against HIV/ one to five years.294 AIDS Infection, which outlines the rights and responsibilities One major goal of the National Reproductive Health of the government as well as individuals with respect to people Care Strategy for 2001–2010 is to reduce the number of living with HIV/AIDS.310 unwanted pregnancies and to manage abortion-related The ordinance prohibits discrimination against persons complications effectively.295 The strategy states that qualified living with HIV/AIDS.311 Among its key provisions are health personnel, medical equipment and other supplies, and the following:

counseling should be a standard part of post-abortion care.296 ■ Individuals are responsible for protecting themselves Local policies provide incentives such as allowances and from HIV/AIDS by employing preventive measures maternity leave for women who terminate their pregnancies. as well as by participating in preventive activities A circular in Ho Chi Minh City, for example, entitles women against the spread of HIV/AIDS in the family and who have terminated a pregnancy to a fully paid maternity community;

leave of seven to thirty days and ten kilos of rice.297 ■ A spouse who is aware that he or she is carrying the Delivery of abortion services HIV virus or has AIDS should inform his or her Medical institutions and practitioners are forbidden to spouse, otherwise the medical establishment perform abortions unless they have been authorized to do so will do so; and PAGE 220 WOMEN OF THE WORLD:

■ It is strictly prohibited to pass the HIV/AIDS virus to Laws and policies others intentionally.312 The Vietnam Population Strategy 2001–2010 calls for Additionally, the Penal Code makes it a crime for anyone giving adolescents and youths both reproductive health to infect others with HIV/AIDS knowingly and prescribes information and access to reproductive health services.327 punishments including imprisonment for up to ten years. Government concern about adolescent reproductive health Transmission of the disease to adolescents or multiple persons is also reflected in the National Strategy on Reproductive is considered an aggravating circumstance and may result in a Health Care 2001–2010.328 The strategy aims to provide prison sentence of 20 years.313 The primary policy to address reproductive health information, education, and counseling HIV/AIDS is the Prevention of HIV/AIDS Strategy 2000, (IEC) at 80% of the country’s reproductive health-care aimed at preventing transmission of the virus through sexual facilities and to educate 70% of all adolescents about sexual intercourse, blood transfusion, and from mother to child. development and sexuality.329 One of the strategy’s goals is The strategy also provides treatment and care for persons to create counseling centers that will provide adolescents infected with HIV, including socioeconomic support for their with reproductive health-care services, including supplying families.314 The government has also expressed concern over contraceptive methods such as condoms for preventing STIs; the high incidence of HIV infection in the National Strategy provide safe abortions; and, where conditions permit, establish for Reproductive Health Care.315 gynecological wards for young female patients.330 The first National Strategy on HIV/AIDS Prevention and Delivery of information and services Control up to 2010 with a vision to 2020 was launched in Currently, reproductive and health education is provided March 2004. The strategy promotes a multisectoral approach through many channels, such as schools, family, mass media, to reducing the stigma of HIV/AIDS and discrimination community activities, youth organizations, and counseling against people who have it; increasing the national and centers. The Government of Vietnam, with the assistance and provincial capacity for preventing HIV/AIDS; and piloting support of the United Nations Population Fund (UNFPA) community-based harm-reduction, treatment, and care and other international and nongovernmental organizations, programs in several cities.316 The strategy is partially funded introduced sex education into the curricula of selected schools by a USD 35 million grant from the World Bank.317 in 1984.331 However, important topics such as STIs, family Adolescent reproductive health planning methods, and abortion have yet to be included in In 2004, there were 24 million adolescents and youths these curricula.332 (aged 10 to 24) in Vietnam, constituting about one-third of In Vietnam, a variety of television programs address the Vietnamese population.318 Despite the growing trend of reproductive and sexual health for adolescents and youths.333 marrying at a later age, the number of adolescents who give From Eye to Heart is one such program, which features a birth before the age of 20 remains high, and about one-fifth of group of ten youths who discuss issues such as sexuality, women become mothers before age 19.319 In rural areas up to premarital sex, pregnancy, and abortion.334 There is also 6.6 % of girls between the ages of 15 and 19 become mothers; Girls’ Program, a weekly show that targets 12- to 15-year- in urban areas the rate is 1.6%.320 olds and focuses on physical and psychological sexual Studies reveal an increase in unprotected sex among development and education.335 adolescents.321 Evidence shows that the rate of young people C. POPULATION infected with HIV is also on the rise. According to the Ministry Since the 1960s, Vietnam has had several different population of Health, in 2001, 60.1% of HIV carriers were adolescents.322 policies that have reflected the country’s stages of develop- Those infected with HIV in the 13–19 age group increased ment. From 1961 to 1975 a campaign to limit the family size from zero in 1992, to almost 10% in 2001.323 In 1997, Vietnam to three children was targeted toward women in urban areas, ranked 11th among 38 countries in the number of children rural areas in the Red River delta, the former fourth inter- under the age of 15 who lost a parent due to AIDS.324 The zone, and the midland and highland provinces.336 From 1975 Ministry of Health estimates the number of children under to 1984, there was a countrywide push to encourage the use of five infected with HIV increased from 7 in 1997 to 210 in birth control, and the government issued specific instructions March 2002.325 Furthermore, a survey conducted in 1998 to promote and increase birth control use.337 in Hanoi, Thai Binh, Binh Dinh, Binh Duong, and Ho Chi Dramatic changes in family planning occurred between Minh City showed that of 4,675 adolescents in the 10–19 1991 and 1996, when the government attempted to implement age group, 11.6% of females and 6.5% of males said they had a two-child policy.338 This policy was abandoned in 2000339 suffered reproductive tract infections.326 VIETNAM PAGE 221

and replaced the following year by the Vietnam Population Planning is the government branch charged with carrying Strategy 2001–2010, which emphasizes the benefits of small out the Vietnam Population Strategy and overseeing family size and voluntary family planning.340 population planning.348 The committee has several important Today, population growth remains a primary concern functions: it builds and implements programs to enhance for the Government of Vietnam. With a population of just the management capacity of civil servants working in the over 82 million in 2004, Vietnam is one of the most populous field; promotes behavioral change to ensure compliance countries in South East Asia and in the world.341 While the with population laws and strategies; improves the quality rate of population growth has decreased significantly in recent of available information regarding population and family years, the large population size is viewed by the government planning; integrates population and family development as one of the “ongoing constraints that continue to fence programs with credit and saving activities and economic Vietnam in the group of poor countries in the world.”342 development; strengthens population and family planning Laws and policies services in poor and remote areas; and works closely with Vietnam’s current population policy is set forth in the the Ministry of Health to undertake reproductive health and Vietnam Population Strategy for the Period 2001–2010.343 family planning programs.349 The implementation of the strategy has been divided into The Ministry of Education and Training is responsible for two periods. implementing those parts of the strategy relevant to education The first period (2001–2005) was supposed to focus and training in and outside of school, especially education on achieving a steady reduction of birth rates with special about reproductive health, gender, and sex.350 attention given to areas with high fertility rates. The goal The Government of Vietnam views the issue of ethnicity was to balance the birth rate with the death rate countrywide as one of special importance. The population and family by 2005. Additionally, pilot models and programs to improve planning policies pay particular attention to ethnic groups, the quality of the population were to be implemented, as and this commitment is reflected in two key documents:

were combined information campaigns designed to change ■ Resolution No. 04-NQ/HNTW of January 14, 1993, reproductive behavior and to provide reproductive health on population and family planning calls for the cre- care and family planning services in remote and poor regions ation of policies for the protection and development with high birth rates. Finally, a national population database of ethnic minorities with declining populations;

system was scheduled to be created to expand successful ■ Decision No. 270/TTg of June 3, 1993, on the Popu- experimental models.344 lation and Family Planning Strategy requires the gov- For the second period (2006–2010), the goals of the ernment to counter declining population rates and strategy include maintaining a balance between the average poor living conditions among certain ethnic minori- birth and death rates through reproductive health and family ties by expanding their access to and improving the planning services, perfecting and expanding intervention quality of maternal and child health-care services, measures to “raise the quality of the population physically, combating malnutrition, and ﬁghting such ailments intellectually and spiritually,” and consolidating the national as malaria and goiter.351 population database system.345 The main objective of the strategy is to promote the concept of the small family to stabilize the population and improve the overall quality of life III. Legal Status of in the country. In the long run, the policy aims to improve Women and Girls people’s skills to meet the demands of industrialization and modernization in order to contribute to the rapid and The health and reproductive rights of women and girls cannot sustainable development of the country.346 Other major be fully understood without taking into account their legal objectives include achieving a stable population by 2005 and social status. Laws relating to their legal status not only (by 2010 in poor and rural areas) at a level consistent with reﬂect societal attitudes that shape the landscape of reproduc- the requirements of socioeconomic development; and tive rights, they directly impact their ability to exercise these improving the overall health and educational development rights. A woman or adolescent girl’s marital status, her ability of the population to achieve a more advanced human to own property and earn an independent income, her level development index (HDI) by 2010.347 of education, and her vulnerability to violence affect her abil- Implementing agencies ity to make decisions about her reproductive and sexual health The National Committee on Population and Family and access to appropriate services. The following section PAGE 222 WOMEN OF THE WORLD:

describes the legal status of women and girls in Vietnam. communes, and wards.364 By 2001, all provinces and cities and most ministries had established subcommittees for the A. RIGHTS TO EQUALITY AND advancement of women, raising the total number of national NONDISCRIMINATION ministries with such committees to 50 out of a total of 53.365 The first Constitution of the Republic of Vietnam, approved Women’s subcommittees at all levels are required to develop by the National Assembly in 1946, provided that “all power an action plan that sets forth concrete measures to implement in the country belongs to the Vietnamese people, irrespec- the National Strategy for the Advancement of Women.366 tive of . . . sex . . . and that women are equal to men in all The key responsibilities and roles for NCFAW are outlined respects.”352 Subsequent amendments have strengthened in the National Strategy for the Advancement of Women women’s legal status.353 The 2001 constitution includes sev- in Vietnam 2001–2010 and its first implementing plan, the eral guarantees of the rights to equality and nondiscrimi- National Plan of Action for the Advancement of Women in nation. It provides that “[a]ll citizens are equal before the Vietnam 2001–2005,367 and include the following: law”354 and that “[m]ale and female citizens have equal rights ■ disseminate information on the Convention on the in all fields—political, economic, cultural, social, and the Elimination of all Forms of Discrimination against family.”355 The constitution strictly prohibits all acts of dis- Women (CEDAW) and other laws and policies con- crimination against women and all acts harmful to women’s cerning women;368 dignity.356 Further, the constitution obliges the government ■ integrate CEDAW into the current legal system;369 and civil society to help women reach their full potential ■ conduct training courses to promote gender aware- both within and outside of the home. It proposes a new ness among policy makers, civil servants, and those social ethic that would relieve women of the sole responsibil- responsible for implementing government policies, ity for housework, enabling them to complete their educa- especially men and high-ranking officers;370 tion, advance their career, obtain access to health care, and ■ research and assess the impact of national laws and enjoy periods of rest in addition to being able to fulfill their policies on women and develop a database of gender maternal obligations.357 Finally, the constitution prohibits statistics;371 discrimination between sons and daughters.358 ■ advise government officials and monitor govern- The right to gender equality is also recognized in a ment agencies that enforce laws, policies, and training number of national laws, including the Penal Code, the Civil activities relating to women’s rights;372 Code, the Marriage and Family Law, the Labour Code, and ■ conduct public information, education, and commu- the Education Law. The strongest and most sweeping of nication activities to promote gender equality in all these laws is the Penal Code, which penalizes anyone who sectors;373 uses “force” or performs other “serious actions” in an attempt ■ emphasize the importance of women’s full and equal to keep women from participating in political, economic, participation in all aspects of social and family life;374 scientific, or social activities with imprisonment ranging from and three months to a year.359 The Marriage and Family Law ■ advance the rights and interests of the girl-child.375 prohibits discrimination on the basis of sex.360 Other goals specified in the Strategy for the Advancement Formal institutions and policies of Women and the Plan of Action for the Advancement of The Government of Vietnam has created several Women include the following: institutions and a number of strategies designed to achieve ■ expand employment opportunities for women; gender equality.361 National organizations committed to ■ improve women’s access to economic resources;376 promoting women’s equality include the National Committee ■ eradicate illiteracy and increase opportunities in edu- for the Advancement of Women in Vietnam (NCFAW), the cation and training for women;377 Vietnamese Women’s Union (VWU), and the Board for ■ improve the quality of health care for women, Women’s Affairs under the Vietnam Labor Confederation.362 including reproductive health services;378 and NCFAW was established in 1993 and serves as the principal ■ enhance the role and position of women leaders and coordinating and strategizing body for promoting women’s increase the number of women in government.379 status and enhancing women’s roles in Vietnam.363 It oversees The VWU mobilizes women across socioeconomic divides the creation and expansion of women’s subcommittees in to participate directly in drafting laws and policies relating to agencies under the authority of ministries and administrations, women and children.380 The VWU further collaborates with and governing bodies in provinces, districts, towns, state ministries and administrations at all levels to implement VIETNAM PAGE 223

programs that satisfy the needs of women and children.381 to choose a family name and forename;393 the right to exercise The VWU functions at the central, provincial, district, and full freedom of choice in marriage, including the right to commune administrative levels.382 choose a spouse of a different nationality or religion;394 and the right to request, for a legitimate reason, the termination B. CITIZENSHIP of a marriage.395 Finally, the Civil Code also emphasizes the The 1996 Civil Code guarantees every individual’s right to principle of monogamous marriage which is based on the citizenship and provides that “[t]he recognition, change, nat- union of one husband and one wife.396 uralization, and renunciation of Vietnamese citizenship shall The Marriage and Family Law stipulates that cohabiting be carried out in accordance with the conditions, orders, and couples without a marriage registration are not legally procedures provided for by the law on citizenship.”383 recognized as husband and wife.397 C. MARRIAGE Laws governing marriages for ethnic minorities The Marriage and Family Law was endorsed by the National The laws and customs of ethnic minority groups must Assembly in June 2000 and took effect in January 2001. The conform to the Marriage and Family Law. Those customs not law establishes marriage as a right and endorses the principle conflicting with national law are to be respected.398 of monogamous union based on equal relations between a Decrees No. 32/2002/ND-CP and No. 38/2002/ND- man and a woman.384 CP regarding the application of the Marriage and Family Law Marriages between Vietnamese citizens of different to ethnic minorities aim to eliminate customs that contravene ethnicities and/or different religions, between religious the 2000 Marriage and Family Law.399 They include strict and nonreligious people, and between Vietnamese citizens prohibitions on kidnapping girls and forcing them into and foreigners are respected and protected by law.385 The marriage and on the use of superstition to hinder men and state, society, and family have the duty to protect women women from marrying freely.400 Additionally, they affirm and children, and to help mothers fulfill the functions of the right of widows and widowers to remarry freely without motherhood.386 having to compensate the families of the late spouse.401 Under the Marriage and Family Law, the minimum Other customs banned by Decree No. 32/2002/ND- marriage age is 20 for men and 18 for women. The decision CP include marriages to underage persons; marriages not to marry must be made voluntarily by both parties; the use of registered at the communal People’s Committee; marriages force, deception, or obstruction is strictly prohibited.387 between relatives; and the prohibition of marriages on the The law also stipulates conditions under which marriage is basis of differences in ethnicity or religion.402

forbidden, some of which include the following: D. DIVORCE ■ between people who are already married; The 2000 Marriage and Family Law also governs divorces ■ between people who have lost their civil capacity to in Vietnam.403 The law recognizes the right of a husband or act; wife to ask the court to settle a divorce case.404 Husbands are ■ between family members within three generations; prohibited from seeking a divorce if the wife is pregnant or ■ between current or former adoptive parents and their nursing a child under one year of age.405 adopted children; and According to the Marriage and Family Law, the court ■ between people of the same sex.388 can review an application for divorce “when the situation is To protect the sanctity of marriage and the family, the serious, the cohabitation can no longer exist, or the goal of the Marriage and Family Law prohibits acts of false marriage, marriage fails.”406 There are two types of divorces: coercive marriage, marriage and divorce scams, cheating, and ■ Divorce requested by both parties with agreement on requiring dowry upon marriage.389 It guarantees equality the division of property and child custody arrange- between the husband and wife and endows each with “equal ments. In this instance, the court will review the obligations and rights in all aspects of the family”.390 The agreement to ensure that the best interests of the wife law further dictates that husband and wife must respect each and children are protected.407 other and must not mistreat one another, or injure the other’s ■ Divorce by request of one party following failed man- honor, dignity, or reputation in any way.391 datory reconciliation attempts. In this case, the court Women’s rights in marriage are also protected by the 1996 determines whether divorce is appropriate.408 Civil Code. According to the code, the wife and husband Maintenance and support laws have equal rights and obligations in all aspects of their family Vietnamese laws do not require ﬁnancial support for and civil lives.392 In addition, men and women have the right PAGE 224 WOMEN OF THE WORLD:

either the wife or the husband upon divorce. However, the land use contracts are registered in the name of the male head Marriage and Family Law contains provisions that determine of household as stipulated by the 1993 Land Law.427 The the division of property at the time of divorce.409 Marriage and Family Law also provides that property be Upon divorce, property is to be divided according to the equitably and logically divided between the husband and wife mutual wishes of the parties.410 If the parties fail to agree, the upon divorce.428 court may divide the property.411 Each party retains his or Labor and employment her own property.412 Common property is to be divided so In 2001, almost 80% of Vietnamese women participated that each side obtains the same value amount.413 If there is a in the labor force,429 accounting for over 48% of the labor difference in value, the side getting the higher value must pay force.430 Only 38% of salaried workers are women.431 Women the difference to the other.414 When deciding how to divide earn on average only 78% of the wages earned by their male the property, the law requires that the needs of each side as colleagues with similar qualifications in the same sector.432 well as of each dependent be considered.415 Women are disproportionately employed in the fields of Parental rights education, sales, accounting, and industrial labor and are less According to the Marriage and Family Law, a couple must likely than men to be employed in management positions and agree at the time of divorce on who will have custody of technical jobs.433 Since the doi moi reforms, there has been a the children and on each spouse’s responsibilities towards the 40% decline in the number of women hired by the state and children.416 If the couple cannot agree, the mother receives as a result the number of women working in the private sector custody of children under three years old.417 After the divorce, has risen substantially.434 both the mother and father remain obligated to care for, The constitution states that men and women have equal educate, and raise their adolescent children and adult children rights in the labor force and should receive equal pay for equal with disabilities who are unable to support themselves.418 work.435 It mandates maternity leave for all female workers The law also states that “those who do not take primary and fully paid prenatal and postnatal leaves for female civil responsibility for the children shall have the obligation to servants and salaried workers.436 provide financial assistance.”419 Both the Civil Code and the Labour Code recognize the right to work.437 The Civil Code also confers the freedom E. ECONOMIC AND SOCIAL RIGHTS to choose a job or occupation without discrimination on the Ownership of property and inheritance basis of sex.438 The Labour Code, revised in 2002, articulates The constitution guarantees the right to enjoy property with- the rights and obligations of employees and employers and out interference from the government. However, it allows outlines labor standards.439 In addition to the right to work, the state to forcibly purchase or requisition citizens’ property the code guarantees the freedom to select a job or occupation, for national security reasons.420 to learn a trade, and to receive vocational skills training The Civil Code of the Socialist Republic of Vietnam irrespective of sex.440 The Labour Code stresses the right to approaches the right to enjoy private ownership in a gender equality in the workplace441 and asserts that qualified nondiscriminatory way.421 For instance, the code provides female job applicants be given priority.442 The state is urged the right to inheritance in the following order: “the wife, to adopt a policy of “preferential treatment” (in the form of tax husband, biological father, biological mother, adoptive father, breaks) for businesses that employ many female workers,443 adoptive mother, biological children adopted children of the and it has the responsibility to develop “various forms of decedent.”422 The 2000 Marriage and Family Law establishes training in favor of female workers” that will enable them to that spouses have “the right to inherit each other’s property as increase their flexibility in the job market.444 Furthermore, defined by laws on inheritance.”423 the Labour Code prohibits employers “from conduct which Women are promised the same opportunities as men to is discriminatory toward a female employee or conduct which participate independently in civil transactions, contracts, degrades the dignity and honor of a female employee.”445 It property management, and litigation to legally protect their maintains that women and men should receive equal pay for interests.424 All civil transactions made in accordance with equal work and should be treated equally with respect to wage established law are valid and enforceable regardless of whether increases.446 In a workplace with women, the Labour Code they are carried out by a man or a woman.425 states that there must be changing rooms, shower facilities, The Marriage and Family Law requires that land use and toilets for women.447 contracts for rural land be listed with the names of both Additional guidelines exist regarding the treatment of spouses to indicate shared ownership.426 However, 80% of women in the workforce. Under the Labour Code, a woman VIETNAM PAGE 225

must not be assigned “heavy or dangerous work, or work undergoing a procedure to regulate menstruation. requiring contact with toxic substances, which has adverse This is in addition to a specified rest period and other effects on her ability to bear and raise a child.”448 The Law of standard allowances detailed in circulation 01/TLD Protection of People’s Health stipulates that “organizations and dated January 1, 1989.456 individuals using women’s labor must follow regulations aimed Pregnant employees are legally entitled to unilaterally at protecting women’s health, and implement policies toward terminate their employment contract without penalty if pregnant women, women in childbirth, nursing mothers, a doctor concludes that their fetus will be harmed if they and applied family-planning methods.”449 Employers may continue working.457 In such cases, the time limit provided not hire women of any age for work in mines or for jobs by the doctor determines when the woman must notify that require constant immersion in water.450 Businesses that her employer.458 employ women in these restricted fields must adopt plans to The Labour Code states that female employees are entitled train and gradually transfer female employees to jobs that are to pre- and postnatal leaves of absence that range from a total more appropriate for their health and must intensify measures of four to six months “as determined by the government on the to protect the health of female employees.451 basis of working conditions and nature of the work, whether To help rural women advance their agricultural the work is heavy, harmful, or in remote locations.”459 At the productivity and improve the quality of their lives, the VWU end of her maternity leave, a woman can arrange with her and the Ministry of Agriculture and Rural Development employer to take additional unpaid leave.460 issued Joint Resolution No. 47/2000/NQLT/LHPN-BNN A female employee is also entitled to return to work after in April 2000.452 The resolution sets forth concrete measures two months of maternity leave if her doctor approves.461 to implement an action plan adopted by the Ministry of Women who exercise this option must notify their Agriculture and Rural Development and the Vietnam Women’s employers in advance. They continue to receive maternity Union Central Committee.453 These measures include benefits in addition to their regular salaries for the days encouraging women to apply technical advances to agricultural they work.462 The Labour Code also stipulates that female production, maintenance, processing, and the selling of farm workers employed in heavy manual labor who are seven or produce; to assist each other in developing household, farm, more months pregnant should be assigned to lighter jobs, or and forestry economies; and to protect the environment.454 should have their daily work hours cut by one hour while Circular 05/TT-TLD dated May 1, 1989, issued by the continuing to receive full pay.463 Vietnam General Federation of Trade Unions, lays out special In general, employers are not permitted to assign women allowances that can be granted to female employees who who are seven or more months pregnant, or women who are miscarry or undergo abortion, menstrual regulation, or the nursing children under the age of one, to “work overtime, at insertion of IUDs.455 night, or in distant places.”464 Furthermore, female employees These allowances are as follows: are entitled to 30 minutes of rest per workday during their

■ Female workers who have two or more children are periods,465 and if they are nursing children under 12 months, entitled to 20 days of rest (including Sundays and they are entitled to 60 minutes off during working hours holidays) after having an abortion that took place while continuing to receive full pay.466 In workplaces where before the third month of pregnancy and 30 days of the number of female employees is high, the employer is rest after having an abortion that took place after the responsible for organizing a daycare center or preschool class, third month of pregnancy, with allowances provided or for covering part of the kindergarten or preschool costs by a social security fund equivalent to 100% of their incurred by female employees with young children.467 salary and bonus. The Labour Code identiﬁes the following circumstances

■ Female workers who have two or more children are under which a female employee is entitled to receive entitled to seven days of leave (including Sundays or social insurance benefits when taking leave:468 a prenatal holidays) following any procedure to regulate men- examination; an abortion; caring for a sick child under struation, or after they have been fitted with an IUD, seven years of age; or adopting a newborn. Under these with allowances provided by a social security fund circumstances, female employees are entitled to a social equivalent to 100% of their salary and bonus. insurance benefit, or their employer must pay them a sum

■ Female workers who have no children or who have equivalent to the social insurance beneﬁt.469 The length of one or two children are entitled to a sum of VND time of the leave and the level of social beneﬁt are determined 2,500 (USD 0.16) toward their health allowance, after by the government.470 After maternity leave, or even after PAGE 226 WOMEN OF THE WORLD:

permitted unpaid leave, a female employee is assured of her social and economic programs;

job upon returning to work.471 ■ revising and strengthening the enforcement labor and During her maternity leave, a female employee is entitled employment policies to ensure gender equality in to receive a social insurance beneﬁt equal to 100% of her salary, recruitment, maternity leave, labor safety, vocational plus an additional beneﬁt equal to one month’s wages if she is training, income, retirement, and social insurance;485

giving birth to her ﬁrst or second child and has paid her social ■ increasing women’s access to economic resources insurance premium.472 including land, credit, technical training, and agricul- Aside from the Labour Code, social insurance beneﬁts are tural extension;486

also discussed in the 1995 Regulations on Social Insurance.473 ■ investing in professional, vocational, and technical The regulations guarantee social insurance beneﬁts for workers training programs for women;487

who take time off to attend to a sick child under the age of ■ developing a database of women’s status in the labor seven.474 The regulations also contain provisions for maternity and employment market;488 and

benefits during pregnancy and childbirth,475 including three ■ researching the impact of economic development and full days of paid leave for medical examinations.476 If an structure on female workers.489 employee suffers a miscarriage, she is entitled to 20 days of The retirement age for Vietnamese women is generally five paid leave if the miscarriage occurs before the third month years younger than that of their male counterparts. Salaried of pregnancy and 30 days if the miscarriage occurs after the women reach compulsory retirement by age 55, but men may third month.477 The regulations also detail the time limits work until age 60.490 for maternity leave that were initially outlined in the Labour Access to credit Code.478 They provide four months of prenatal and postnatal A number of lending channels are available to women leave for women who work in “normal conditions.”479 The in both the formal and informal sectors. The majority of leave is extended to five months or more for women engaged women borrow from private informal sources where interest in harmful or special occupations as determined by the rates are higher and funds are limited.491 Women hold 41% Ministry of Labour, Invalids, and Social Affairs.480 of all loans in Vietnam, but only 29% of the loans are from Special provisions exist for women in unique circumstances. formal institutions such as the Vietnam Bank for Agriculture For example, when an employee gives birth to twins or other and Rural Development (VBARD), the Vietnam Bank for the multiples, she is entitled to an extra 30 days of leave per Poor (VBP), and the People’s Credit Fund.492 additional child.481 In cases where a child is stillborn, or dies Rural women constitute 10% of borrowers from the before the age of 60 days, the female employee is entitled to VBARD,493 and the number of rural women with access to 75 days of leave after the date of delivery, with full benefits.482 loans has risen steadily in recent years.494 These institutions If the child dies after the age of 60 days, the female worker is provide loans through savings borrowing groups, or with the entitled to 15 days of leave after the day the child dies.483 guarantee of the commune people’s committee, and do not A number of policies articulated in the National ask for collateral security.495 In 1999, banks provided loans Strategy for the Advancement of Women in Vietnam for to 2,340 households with a total value of VND 4,086 billion the Period 2001–2010 and the National Plan of Action for (USD 270 million), an increase from 1998 of VND 797 billion the Advancement of Women in Vietnam 2001–2005 aim to (USD 53 million).496 improve women’s economic status in labor and employment. The VWU manages a revolving credit scheme of VND These include the following: 4,000 billion (USD 265 million) that provides small, low-

■ hire women for 50% out of the total 13.5 million new interest loans to women.497 However, these loans are job placements; contingent upon participation in family planning, literacy,

■ increase the rate of women receiving professional or other social programs.498 The VWU organizes more training to 40%; than 30% of the 197,000 saving groups in all provinces and

■ reduce the rate of urban women’s unemployment to cities nationwide.499 5%; and Education

■ increase the proportion of female participants in agri- Literacy rates in Vietnam are generally high. In 2003, the cultural extension services to 50%.484 literacy rate for women above the age of 15 stood at 92%, while The policies seek to achieve these goals through the the rate for men above age 15 was 95%.500 Yet statistics reveal following actions: that the rate of illiterate women and girls living in remote and

■ strengthening gender mainstreaming activities in all highland areas can be as high as 50% to 60%, particularly in VIETNAM PAGE 227

the Central Highlands and northern mountainous areas and F. PROTECTIONS AGAINST PHYSICAL AND among ethnic minorities.501 SEXUAL VIOLENCE Vietnam has an 89% primary education enrollment rate and Rape is close to achieving gender balance in primary education.502 The Penal Code provides the legal framework for prosecut- In 2000, girls constituted 47.9% of primary school students, ing crimes of rape (hiep dam). The code defines the crime of 46.9% of junior secondary school students, and 46.8% of senior rape as occurring when any person uses force or threatens secondary school students.503 The number of girls who drop to use force or coercion of any kind to have sexual inter- out of primary education is disproportionately high (girls course with another person who either did not or could not account for 70% of all dropouts), and girls receive an average (because of a physical or mental handicap) consent to the of 1.1 fewer years of schooling than boys.504 The number of act.517 A convicted rapist is subject to imprisonment from females in higher education is significantly lower (39%) than two to seven years.518 that of males, which the Vietnamese government considers The punishment for rape is increased to seven to fifteen one of the biggest constraints in education equality.505 years’ imprisonment when it is committed under some of the The constitution affirms that “the citizen has both the following circumstances:

right and the duty to receive training and instruction” and ■ as part of organized crime;

that “[p]rimary education is compulsory and dispensed free of ■ where the perpetrator is the victim’s guardian, care- charge.”506 Education and training are “top-priority policies” taker, teacher, or medical provider; 507 for the government. ■ where the victim is raped by multiple persons or The 1998 Law on Education gives legal force to the multiple times by one person; 508 guarantees to equal education outlined in the constitution. ■ incest; or

The law aims to strengthen the national education system, ■ where the rape results in serious health problems for improve the quality and accessibility of education, and the victim.519 raise the education level and professional capacity of the Crimes of rape under other circumstances can result in 12 population in order to complement the industrialization to 20 years’ imprisonment, life imprisonment, or the death and modernization of the country.509 The national general penalty.520 These circumstances include the following:

education system comprises ﬁve years of compulsory primary ■ severely harming the health of the victim, resulting in education; four years of junior secondary education; and a disability;

three years of senior secondary education or one to four years ■ knowledge by the rapist of his HIV-positive status; and 510 of vocational secondary school. Under the law, the state ■ causing the victim’s death or suicide.521 must create conditions that ensure gender equality at all levels The rape of adolescents between the ages of 16 and 18 is of education.511 Families are responsible for sending their subject to higher terms of imprisonment, ranging from five children between the ages of six and fourteen to compulsory to ten years.522 Persons convicted of rape are prohibited from primary education facilities.512 holding professional positions or accepting certain specific The Vietnamese Population Strategy 2001–2010 jobs for a period of one to five years.523 Marital rape is not emphasizes gender equality in education, listing universal explicitly mentioned as a criminal offense of the Vietnamese education for all girls of school age and job training for female Penal Code.524 In theory, women may bring cases of marital workers as two of its primary goals.513 It also establishes rape to the court under the Penal Code’s provisions for crimes specific benchmarks for equal education, including raising of sexual violation (cuong dam), which, depending on the the proportion of literate adults to 97%–98%, and increasing circumstances, can be punishable by six months to eighteen to 22%–25% the rate of people attaining a general school years’ imprisonment.525 education by the year 2010.514 Other long-term goals of Domestic violence the strategy include establishing universal junior secondary No specific national legislation on domestic violence exists schooling by the year 2010.515 in Vietnam, and the government has not required officials The Education Development Strategy 2001–2010 and the dealing with this type of violence to undergo any special Comprehensive Poverty Reduction and Growth Strategy training. Several legal provisions provide relief to victims 2001–2010 also address gender equality in education. Both of physical or mental spousal abuse; nevertheless, domestic strategies aimed to eliminate gender differentials in primary violence is widespread in Vietnam. One study found that 40% and secondary education by 2005 and at all levels of education of women in a lowland village and 70% in a highland village by 2010.516 reported being regularly subjected to physical violence.526 PAGE 228 WOMEN OF THE WORLD:

The constitution and the Civil Code protect the right of guilty of organizing the illegal entry or exit of persons to or Vietnamese citizens to life, health, honor, and dignity.527 The from Vietnam face prison terms of up to twenty years and a Penal Code is the only source of law, however, that is directly maximum fine of VND 50 million (USD 3,306).541 relevant to domestic violence. It stipulates that repeat and first- Prime Minister’s Directive No.766/TTg outlines how time offenders who “ill-treat or persecute” family members various ministries and governmental agencies should and cause “serious consequences” may be given a formal collaborate and implement measures to prevent cross- warning, probation for up to two years, or imprisonment for border illegal trafficking of women and children and punish three months to two years.528 trafficking ringleaders. These ministries include Internal The Marriage and Family Law similarly forbids “ill- Affairs; Foreign Affairs; Labor, Invalids and Social Affairs; treatment [or] persecution against grandparents, parents, Justice; Trade; Culture and Information; Finance, Investment, spouses, children, grandchildren, siblings, or other family and Planning; Tourism Administration; and the National members.”529 It provides that “agencies, organizations, Committee for the Care and Protection of Children.542 and individuals have the right to request the court or other The directive instructs the Ministry of Internal Affairs competent bodies to take measures to promptly stop and to coordinate with Interpol and police forces of neighboring handle” violators of the law.530 Violations of these provisions countries, especially China and Cambodia, to discover, prevent, result in administrative sanctions, penal liability, or the and eradicate organized trafficking chains.543 Furthermore, payment of monetary compensation.531 the people’s committees at the province and district levels must Sexual harassment guide and empower local police forces to strengthen border There is no specific law regarding sexual harassment in patrols, find missing persons, and spearhead efforts to end the Vietnam. However, the constitution strictly prohibits all trafficking of women and children.544 The VWU, with the acts of discrimination against women and acts harmful support of the International Organization for Migration, has to a woman’s dignity.532 It obliges the state and society to been a leading body in the implementation of the directive “create all necessary conditions for women to raise their through its IEC antitrafficking campaigns in 14 provinces and qualifications in all fields and fully play their roles in society,” cities, and in its provision of support to trafficked victims for including the workplace.533 community reintegration efforts.545 Commercial sex work and sex-trafficking Sexual offenses against minors Commercial sex work is prohibited in Vietnam. According According to the Ministry of Public Security, the rape of to the Ministry of Labor, Invalids, and Social Affairs, two minors increased from 14.8% of total rape cases in 1993 to 31% hundred thousand women are involved in the sex industry in 1996.546 The percentage of juveniles involved in commercial in Vietnam.534 The Penal Code prescribes punishment for sex work has also risen from 7% to 14% in recent years547 The persons harboring and procuring commercial sex workers.535 Ministry of Labor, Invalids, and Social Affairs estimates that It also prohibits paid sexual intercourse with minors between there are at least twenty thousand girls involved in the sex the ages of 16 and 18 and punishes violators with up to eight industry.548 A 2000 survey of two thousand sex workers in years’ imprisonment.536 Any person convicted of organizing Ha Noi and Ho Chi Minh shows 70% of commercial sex or encouraging commercial sex work will be imprisoned for workers are under 25 years of age, and many of them are six months to five years.537 Sex workers who are aware of HIV-positive.549 their HIV status and knowingly spread the disease to others The Vietnamese Penal Code addresses rape and other are held criminally liable.538 sexual offenses committed against minors. It defines sexual The 2003 Ordinance for Prevention and Control of intercourse with a girl who is between the ages of 13 and Prostitution outlined a series of social and economic 16, without her consent, as rape (hiep dam tre em).550 The measures to prevent commercial sex work and to support crime is punishable by seven to twenty years’ imprisonment, the women who were involved in it. These measures or in serious circumstances, life imprisonment or death.551 include job training, job creation, medical assistance, and An adult who has consensual sexual intercourse with a girl educational opportunities.539 who is between the ages of 13 and 16 is penalized by one to The government enacted stiffer penalties for traffickers ten years’ imprisonment.552 Sexual intercourse with a girl under in the 2000 revisions to the Penal Code. The revised code the age of 13, regardless of consent, is considered statutory criminalizes trafficking of women and prescribes prison rape under the Penal Code.553 The code prescribes a minimum sentences ranging from two to seven years for violators, as sentence of twenty years’ imprisonment, to life well as fines and probation.540 Additionally, persons found imprisonment, or the death penalty.554 VIETNAM PAGE 229

Persons who have sexual intercourse with an adolescent sex ENDNOTES

worker between the ages of 16 and 18 may be subject to one to 1. Federal Research Division, Library Of Congress, Country Studies: Vietnam, eight years’ imprisonment.555 Sexual molestation of a minor Country Profile 4 (Ronald J. Cima ed., 2004), http://lcweb2.loc.gov/frd/cs/profiles/ Vietnam.pdf [hereinafter Library of Congress, Country Studies: Vietnam Country is characterized as a crime of sexual violation (cuong dam) Profile 2004]. under the Penal Code. Where the act is committed against 2. Bureau of East Asian and Pacific Affairs, U.S. Department of State, Background Notes: Vietnam (2005), http://www.state.gov/r/pa/ei/bgn/4130.htm an adolescent between the ages of 16 to 18, imprisonment of (last visited July 8, 2005). 3. U.S. Department of State, supra note 2. 556 two to seven years’ is prescribed. If the victim is under 16, 4. Id. the perpetrator will be subject to a minimum sentence of five 5. Central Intelligence Agency (CIA), U.S. Government, Vietnam, in The World Factbook (2005), http://www.cia.gov/cia/publications/factbook/geos/vm.html. years’ imprisonment or, at maximum, life imprisonment.557 6. Vietnam Const. pmbl. (1992) (amended 2001). 7. Central Intelligence Agency, supra note 5; U.S. Department of State, supra note 2; Library Of Congress, Country Studies: Vietnam Country Profile 2004, supra note 1, at 2. 8. U.S. Department of State, supra note 2; Ministry of Foreign Affairs, Government of Vietnam, Vietnam: Political System, http://www.mofa.gov.vn/en/tt_vietnam/ nr040810155159/ns040826100350 (last visited July 11, 2005). 9. U.S. Department of State, supra note 2; Federal Research Division, Library Of Congress, Country Studies: Vietnam, ch. 1, The Aftermath of Geneva, tbl. A. Chronology of Important Events (Ronald J. Cima ed., 1987), http://lcweb2.loc.gov/frd/ cs/cntoc.html (last visited July 8, 2005) [hereinafter Library of Congress, Country Studies: Vietnam 1987]. 10. Robert K. Brigham, Public Broadcasting Service, Battlefield Vietnam: A Brief History, http://www.pbs.org/battlefieldvietnam/history/index.html (last visited Sept. 17, 2005). 11. U.S. Department of State, supra note 2. 12. Central Intelligence Agency, supra note 5; U.S. Department of State, supra note 2. 13. Central Intelligence Agency, supra note 5; U.S. Department of State, supra note 2. 14. U.S. Department of State, supra note 2. 15. See United Nations Population Fund (UNFPA), The State of World Population 2002, at 73 (2002). 16. The World Bank, GenderStats: Summary Gender Profile, http://genderstats. worldbank.org/genderRpt.asp?rpt=profile&cty=VNM,Vietnam&hm=home (last visited July 8, 2005) (estimates for 2000). 17. Central Intelligence Agency, supra note 5. 18. Id.; U.S. Department of State, supra note 2. 19. Central Intelligence Agency, supra note 5. 20. United Nations, List of Member States (2004), http://www.un.org/Overview/ unmember.html (last updated Feb. 24, 2005). 21. Central Intelligence Agency, supra note 5. 22. U.S. Department of State, supra note 2. 23. The Constitution was unanimously adopted at the 11th Session of the Eighth National Assembly and amended by Resolution 51-2001-QH10 at the 10th Session of the Tenth National Assembly; See Central Intelligence Agency, supra note 5. 24. U.S. Department of State, supra note 2. 25. Vietnam Const. art. 2 (1991) (amended 2001). 26. Id. arts. 2, 6. Democratic centralism is a Marxist-Leninist organizational principle that prescribes a hierarchical framework of party structures established through democratic elections. Library Of Congress, Country Studies: Vietnam 1987, supra at 9, Glossary. 27. Vietnam Const. art. 146 (1992) (amended 2001). 28. Id. pmbl. 29. U.S. Department of State, supra note 2; See Library Of Congress, Country Studies: Vietnam Country Profile 2004, supra note 1, at 14. 30. U.S. Department of State, supra note 2. 31. Vietnam Const. art. 101 (1992) (amended 2001). 32. Id. art. 103.2. 33. Id. art. 102; Central Intelligence Agency, supra note 5. 34. Vietnam Const. art. 110 (1992) (amended 2001). 35. Id. art. 103.4. 36. Id. art. 103.8. 37. Id. art. 84.7. 38. Id. art. 107. 39. Id. art. 108. 40. Id. art. 114.1. 41. Id. art. 114.3. 42. Id. art. 114.4. 43. Id. art. 110. 44. Id. art. 85; Central Intelligence Agency, supra note 5. 45. Vietnam Const. art. 83 (1992) (amended 2001). 46. Id. arts. 6, 97. 47. Id. arts. 84.1, 88, 147. 48. Id. arts. 84.1, 84.9. 49. Id. art. 84.7. 50. Id. art. 83. 51. Id. art. 84.12. PAGE 230 WOMEN OF THE WORLD:

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