Birth Control Dilemma for Chinese Catholics Under One-Child Policy

BIRTH CONTROL AND THE CITIZEN-CATHOLIC IN ONE-CHILD CHINA
Sarah J. Conroy
I. INTRODUCTION ............................................................................................ 432 II. DIFFICULTIES IN RESTORING SINO-VATICAN DIPLOMACY ............................. 435 III. INCOMPATIBLE CLAIMS ON ULTIMATE LOYALTY .......................................... 441 A. A Servant with Two Masters: Dual Claims on Loyalty ......................... 441 B. Chinas Claim of Authority by Regulation of Religion ......................... 442 C. The Vaticans Claims of Religions Ultimate Authority ........................ 445 IV. THE CITIZEN-CATHOLICS CHOICE BETWEEN BELIEFS AND STATE ................ 448 A. Birth Control as an Instrument of Compliance in China ...................... 449 B. Policies Behind the Vaticans Prohibition of Birth Control .................. 451 C. A Choice Constrained: Chinese Catholics Birth Control Options ....... 453 V. CONCLUSION ............................................................................................... 457
Associate, Frost Brown Todd LLC. B.A., Washington University, 2006; J.D., Washington University, 2009. I would like to thank Frances Foster for her invaluable commentary on earlier drafts of this article, and the Connecticut Journal of International Law for their editorial assistance.
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I.
INTRODUCTION
When Pope Paul VI introduced Humanae Vitae, the 1968 Vatican encyclical outlining the Churchs official stance on birth control, he noted: The changes that have taken place are of considerable importance and varied in nature. In the first place there is the rapid increase in population which has made many fear that world population is going to grow faster than available resources, with the consequence that many families and developing countries would be faced with greater hardships. This can easily induce public authorities to be tempted to take even harsher measures to avert this danger.1 A decade after Humanae Vitae was released, these feared harsher measures took the form of the One-Child Policy in the Peoples Republic of China (China or the PRC).2 In 1979, Deng Xiaoping introduced the One-Child Policy as an
1. Pope Paul VI, Encyclical Letter Humanae Vitae, of the Supreme Brief of Paul VI, on the Regulation of Birth, Vatican (July 25, 1968) (on file with Vatican Library), available at http://www.vati can.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae_en.html [hereinafter Humanae Vitae]. 2. Population and Family Planning (promulgated by the Standing Comm. Natl Peoples Cong., Oct. 1, 2001, effective Sept. 1, 2002), 63 P.R.C. LAWS arts. 17-18 [hereinafter Family Planning Law]. This law codified parts of the policies which have been in place in the PRC since 1979. Even though the policies have not been formally codified, the Communist Party directives outlining a One-Child Policy were no less mandatory. In China, Communist Party directives are equivalent or superior to legislation and codified laws. The absolute leadership of the Central Communist Party is one of the four cardinal principles that rules China, according to the 1982 Constitution. Xiaorong Li, License to Coerce: Violence Against Women, State Responsibility, and Legal Failures in Chinas Family-Planning Program, 8 Y ALE J.L. & FEMINISM 145, 150 (1996). The relevant provisions of the policy as codified are contained in Chapter 3: Regulation of Reproduction, which reads: Article 18: The State maintains its current policy for reproduction, encouraging late marriage and childbearing and advocating one child per couple. Where the requirements specified by laws and regulations are met, plans for a second child, if requested, may be made. Specific measures in this regard shall be formulated by the peoples congress or its standing committee of a province, autonomous region, or municipality directly under the Central Government. Family planning shall also be introduced to the ethnic peoples. Specific measures in this regard shall be formulated by the peoples congress or its standing committee of a province, autonomous region, or municipality directly under the Central Government. Article 19: Family planning shall be practiced chiefly by means of contraception. The State creates conditions to ensure that individual citizens knowingly choose safe, effective, and appropriate contraceptive methods. Where birth control operations are performed, the recipients safety shall be ensured. Article 20: Couples of reproductive age shall conscientiously adopt contraceptive methods and accept technical services and guidance for family planning. Incidence of unwanted pregnancies shall be prevented and reduced.
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attempt to curb the greater hardships of food shortage and overcrowding that some feared would result from Chinas rapid population growth.3 The One-Child Policy imposed large fines, possible job loss, forced abortions, and even forcible sterilization on couples who had more than one child.4 Both the One-Child Policy and the Vatican policy on birth control5 address critical and uniquely personal interests.6 The Vaticans prohibition of artificial birth control seeks to maintain the connection between sexual relations and the possibility of reproduction, claiming that this connection is vital to family values and healthy marriages.7 The One-Child Policy, quite separately, aims to curb population growth that arguably threatens to outstrip Chinas ability to feed its people and, thus, to cause mass starvation. The Vatican and the PRC have implemented these policies for the protection of vastly different interests and, as a result, their directives regarding the use of artificial birth control directly conflict. The fact that both policies protect important and valid interestsin spirituality and social values or in public healthonly makes the conflict more difficult to resolve. These policies place a heavy burden on millions of Chinese Catholics: they address vastly different goals, and cannot be obeyed simultaneously. The One-
Article 21: Couples of reproductive age who practise family planning shall receive, free of charge, the basic items of technical services specified by the State. The funds needed for rendering the services specified in the preceding paragraph shall, in accordance with relevant State regulations, be listed in the budget or be guaranteed by social insurance plans. Article 22: Discrimination against and maltreatment of women who give birth to baby girls or who suffer from infertility are prohibited. Discrimination against, maltreatment, and abandonment of baby girls are prohibited. FAMILY PLANNING LAW arts. 18-22 (P.R.C.). 3. Humanae Vitae, supra note 1. For a discussion of the factors which contributed to the Chinese governments adoption of the One-Child Policy, see Li, supra note 2, at 148 (The famine in the early 1960s and the severe economic hardships of the late 60s and early 70s, however, shattered the optimistic growth ideology [Chinas government espoused under Mao Zedong in the 1950s]. By the early 1970s, the government had a new slogan: Later, farther apart, and fewer.). 4. Coercive Population Control in China: New Evidence of Forced Abortion and Forced Sterilization: Hearing Before the H. Committee on Intl Relations, 15th Cong. 26 (2001) (prepared statement of Harry Wu, Dir., Legal Research Found). 5. For the purposes of this article, birth control refers specifically to artificial birth control unless otherwise specified. A few references in this article also will distinguish between artificial birth control and natural birth control methods. 6. Any speculation on the relative weight of these interests, while important in any personal choice between the two, does not detract from the importance of both. The Chinese family planning policy furthers Chinas initiative to curb population growth within its borders, which has global effects when viewed in light of Chinas population size. The Vaticans prohibition against artificial birth control, on the other hand, protects the institution of marriage. The protection of marriage, as the foundation of the Catholic family, has broad implications for various societies worldwide. Both interests, therefore, have vital and pervasive effects. While neither policy is without criticism as to its effectiveness in achieving its goals, both seek to promote valid objectives. 7. [Marital love] is also, and above all, an act of the free will, whose trust is such that it is meant not only to survive the joys and sorrows of daily life, but also to grow, so that husband and wife become in a way one heart and one soul, and together attain their human fulfillment. Humanae Vitae, supra note 1, at 4.
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Child Policy represents the Chinese governments attempt to curb crippling population growth by mandating some form of birth control for couples that have a child. The Vaticans condemnation of birth control and contraceptives is based upon the Churchs interpretation of Catholicisms deeply held views on sexuality, but the condemnation does not include an exception for couples who find themselves legally obliged to prevent additional pregnancies. Though neither China nor the Vatican implemented these policies in response to one another, or even to address the same issues, these policies combine to force Chinese Catholics either to violate the One-Child Policy, or to disobey Catholic doctrine by using contraceptives. When these policies force Chinese Catholics to choose either to obey their sovereign or to follow their religious beliefs, they entwine the reproductive, religious, and civic aspects of Chinese Catholics lives in ways neither policy contemplates, and for which neither policy provides relief. For Chinese Catholicsobligated as citizens to follow Chinese family planning directives, but as Catholics morally prohibited from using contraceptives or abortion to prevent multiple childbirths8 the conflict of these policies creates a conflict of loyalties. Where the actions prescribed by the Church and the State oppose one another, individuals seeking to respect both authorities must choose between the two. By choosing which authority to obey in instances of conflict, the individual effectively chooses which authoritys command places a higher obligation on him. Chinas prohibitively strict financial penalties for violating the One-Child Policy, including the threat of forced sterilization, make this choice extremely difficult. The difficulty of this choice is only aggravated by the fact that both the Vatican and the Chinese government claim that their authority takes precedence over any other allegiance, and more specifically, that one takes precedence over the other. This article will consist of three main parts. Part II will analyze the recent diplomatic interactions between China and the Vatican, including both parties claims to hold superior authority over Chinese Catholics. Part III will assert that these claims, when combined with directives that pull Chinese citizens and Catholics towards opposite actions, force Chinese Catholics to choose whether the Church or the State prescribes a higher law or duty. Part IV will examine this choice in the context of Chinas and the Vaticans opposing directives on the use of artificial birth control. Each of these parts will discuss both Chinas and the Vaticans positions on the relevant issue, as well as both parties representations as to the reasoning behind and the importance of these positions. Although there are many issues on which the Chinese government and the Vatican disagree, this article will discuss only one: the issue of birth control. This issue not only illustrates the effects of a conflict of loyalties between church and state, but also highlights an intriguing facet of the possible conflict. This article
8. The traditional doctrines of the Church oppose the use of any artificial methods of family planning, including condoms, birth control pills, and intrauterine devices (IUDs). Moreover, the Church is wholly intolerant of non-therapeutic abortions unless it is necessary to save the life of the mother. Tania Jiyoung Cho, The Double Moral: Compliance of International Legal Obligations of Reproductive Rights vs. Allegiance to the Catholic Church, 5 SW. J.L. & TRADE AM . 421, 422 (1998).
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will argue that Chinas mandate of birth control and the Churchs prohibition against it do not represent opposite policy concerns. Instead, Chinas use of birth control for practical enforcement needlessly conflicts with the Vaticans moral prohibition of it. Here, the Vatican has taken a moral stance on birth control, and Humanae Vitae directly supports that stance by prohibiting the use of artificial birth control. Rather than ordering the use of birth control as an independent moral endorsement of the method, however, China has mandated the use of birth control to ensure the effectiveness of its family planning policy. The Vaticans and Chinas positions on birth control, therefore, do not rebut one another, but their effects and the behavior they prescribe, are still mutually exclusive. This article argues that these clashing policies create needless friction between China and the Vatican, catching the millions of Chinese Catholics in the crosshairs. II. DIFFICULTIES IN RESTORING SINO-VATICAN DIPLOMACY The relationship between the Vatican and the PRC government has never been cordial, and the two powers have only recently begun to make strides toward establishing formal relations. When the Communist government rose to power in China in 1949, it condemned religion as a tool of oppression and as a social crutch for the poor.9 During the Cultural Revolution in the 1960s, as part of an effort to prevent injustice at the hands of religion, the young government took steps to eradicate religion from China.10 In support of these steps, though years later, the governments White Paper on Freedom of Religious Belief11 recounted centuries of injustices to Chinas population by Western colonialists and, primarily Christian, missionaries.12 During this period of rapid change in China, the governments
9. See generally White Paper on Freedom of Religious Belief (Oct. 1, 1997) (P.R.C.). 10. Sino-Vatican relations worsened with the establishment of the Peoples Republic of China. The new China was hostile to anything reminiscent of western imperialism, including the Roman Catholic Church. Foreign priests were expelled, and many native ones fled overseas for fear of persecution. Gerald Chan, Sino-Vatican Diplomatic Relations: Problems and Prospects, 120 CHINA Q. 814, 816 (1989). This climate further deteriorated during the Cultural Revolution, until it seemed as though China had no more religion. The Cultural Revolution had the designated aim of Destroying the Four Olds (culture, thinking, habits, and customs). All ancestral tablets and domestic shrines in peasant houses were destroyed and replaced by pictures of Mao Zedong. Red flags were placed over Christian churches instead of crosses, objects of veneration were removed from the premises and Bibles were burned . . . and religious personnel were made to do labor reform and sometimes were even tortured or killed. JULIA CHING, PROBING CHINAS SOUL: RELIGION, POLITICS, AND PROTEST IN THE PEOPLES REPUBLIC 127 (1990). 11. See White Paper on Freedom of Religious Belief, supra note 9. 12. These events bolstered Chinas distrust of foreign religious control, as evidenced in the 1982 Constitution and government regulations on religion. Illustrative of this, the White Paper on Freedom of Religious Belief set forth the following: The principle of independence and taking the initiative in their own hands in the management of churches is a historical choice made by the Chinese religious believers of their own accord as part of the Chinese people's struggle against colonialist and imperialist aggression and enslavement. Following the Opium War of 1840 China declined to a semi-feudal and semi-
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distrust for religion, and the Vaticans resistance to the new governments Communist ideology and principles,13 combined to create hostility between them. For almost fifty years after the PRC government was established, China and the Vatican had almost no diplomatic relations.14
colonial country. During this process Western Protestantism and Catholicism were used by colonialism and imperialism as a tool for aggression against China, and a number of Western missionaries played an inglorious part in this: -They participated in the opium trade and in plotting the Opium War unleashed by Britain against China . . . -They participated in the war of 1900 launched by the allied forces of eight powers against China. A number of missionaries, serving as guides, interpreters and information officers, took part in the slaughter of Chinese civilians and the robbing of money and property . . . -They directly took part in plotting and drafting unequal treaties, such as the Sino-British Treaty of Nanking of 1842, the Sino-American Treaty of Wanghea of 1844, the SinoAmerican and Sino-French treaties of Tientsin of 1858 and the Sino-French Convention of Peking of 1860. According to these unequal treaties, Western Catholic and Protestant missionaries could lease land for building their own places of worship in trade ports and enjoyed the protection of local officials . . . -They obstructed and opposed China's struggle against fascism and the Chinese peoples revolution. After Japan invaded Northeast China the Vatican took a stand which was, in fact, supporting the Japanese aggression. It took the lead in recognizing the puppet Manchukuo regime set up by the Japanese and sent a representative there. After the victory in the War of Resistance Against Japan some Western missionaries stirred up hostility against the people's revolution among the converts and even organized armed forces to help the Kuomintang fight in the civil war . . . . While playing an inglorious role in modern Chinese history, Western Catholicism and Protestantism manipulated and controlled Chinese churches turning them into the appendages to Western religious orders and mission societies. Under these circumstances, Chinese clergymen and the vast majority of their followers had no rights. In the 1940s among the 20 archbishops in China there were 17 foreigners and only three Chinese; in the 143 parishes there were some 110 foreign bishops but only about 20 Chinese bishops. Id. The following quotation supports this assertion: The historic connection of Christianity with the West and, in particular, the fact that the majority of Protestant missionaries were Americans has made it easy to suspect Christians of being imperialists . . . . After liberation patriotic Chinese Christians realized that if Christianity is to survive, the Chinese Church . . . must be reformed. PHILOSOPHICAL LIBRARY, THE CHURCH UNDER COMMUNISM: THE SECOND REPORT OF THE GENERAL ASSEMBLY OF THE CHURCH OF SCOTLAND 43-44 (Philosophical Library 1953). 13. Some of Pope Pius XIIs actions aggravated tensions between the PRC government and the Vatican, as made clear by the following quote: True, the conflict between the Catholic church and the Communist government in China was one underscored by the Vatican, as Pope Pius XII condemned the Three Self principles from 1952 to 1954, and forbade the three-million-some Chinese Catholics any cooperation with the Communist regime, including membership in Communist organizations, and reading of Communist newspapers, magazines, and books. Those bishops consecrating others without permission, as well as those consecrated, were excommunicated. This state of affairs persisted even after the end of the Cultural Revolution, and continues today. CHING, supra note 10, at 128. 14. See Chan, supra note 10, at 816-17. As a consequence of this diplomatic silence, the Vatican also had very little communication with the Catholic Church in China throughout this period. The papal letter of 2007 is the most significant communication addressed from the Vatican to the Church in China since the PRC government came to power.
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Despite this early resistance to religion, the Chinese government has since softened its position,15 and has changed its focus to monitoring and regulating religious exercise. 16 In recent decades, the government has decreased its persecution of religious groups,17 and has approved the formation of religious organizations in China.18 As a result, the Catholic Church in China has grown considerably.19 Both parties, however, have been hesitant in these beginning steps toward diplomacy. While China has allowed for the expansion of a regulated Catholic Church within its borders, the government has firmly held that the Vatican must sever diplomatic ties with Taiwan and that the Church in China must be free from the authority of the Pope. The Vatican seems unwilling to concede on either issue.20 These assertions leave the Vatican and China deadlocked, both requiring
15. See id. at 820. 16. Id. 17. In the 1960s, Chairman Mao launched his Great Proletarian Cultural Revolution10 years of chaos and violence led by teenage Red Guards. They sought to stamp out anything traditional or religious, and they targeted Christians. Holly Williams, Chinas Catholics: Far From Rome, BBC NEWS, Dec. 24, 2003, http://news.bbc.co.uk/2/hi/asia-pacific/3343535.stm. Since the implementation of government-approved religious organizations, the government has relaxed its prior stance against religion. Although there are still rumors of persecution of religious groups, specifically groups such as Falun Gong, the lift of the governments original absolute ban on religion has encouraged the growth of religious groups in China. 18. See White Paper on Freedom of Religious Belief, supra note 9. These groups are those which were forced to disband during the Cultural Revolution. See CHING, supra note 10, at 128-29. 19. While this conflict affects millions of Chinese citizens, Catholics constitute only a small minority of Chinas population. In 2006, the BBC reported that, [t]here are an estimated 10 million Catholics in China, divided between the officially tolerated Patriotic Church, and an underground church loyal to Rome. David Wiley, Vatican Throws Out China Bishops, BBC NEWS, May 4, 2006, http://news.bbc.co.uk/go/pr/fre/-/2/hi/europe/4972004.stm. For another estimate, which places the number of Chinas Catholics between twelve and fifteen million, see China, Vatican Agree on New Bishop, USA TODAY, Sept. 21, 2007, http://www.usatoday.com/news/religion.2007-09-21-chinavatican-bishop-N.htm?POE=click-refer. The underground Catholic Church in China is separate from the state-regulated Chinese Patriotic Catholic Association (CPCA). It is not recognized by the government as a legitimate religious group, and thus it is a criminal organization under the Chinese Constitution. As such, the underground Catholic Church conducts most of its activities covertly. Estimates of the number of Chinese Catholics, including members of the underground Catholic Church, vary widely due to the difficulty of obtaining reliable figures as to how many Chinese citizens practice Catholicism outside of the CPCA. See CHING, supra note 10, at 131. Wiley continues: Persecuted in the first decades after the 1949 Communist takeover, the church has made a rapid recovery in the past 20 years. Yet China and the Vatican still have no formal relations that would allow direct contact between Rome and Chinas estimated 12 million to 15 million Catholics. Id. Prompting Wileys article, in 2006 the Vatican acquiesced to Chinas appointment of Chinese bishop Joseph Li Shan to the Beijing diocese, giving hope of a thaw in hostilities over bishop appointments in China. Wiley notes that Li has been praised by both the Vatican and Beijing as concerned with the welfare of the church and being open-minded. His appointment as bishop in Chinas political center and his approval by the Vatican offer a chance to reduce tensions, church officials and experts said. Id. at 1. 20. Although the Vatican has at times indicated that it may be willing to sever diplomatic relations with Taiwan in exchange for greater religious freedoms, it still recognizes Taiwan. See Richard Spencer, Vatican Ready to Sacrifice Taiwan for China, DAILY TELEGRAPH (London), May 16, 2005. For the Vaticans list of states with which it maintains diplomatic relations, see The Holy See, http://www.vatican.va/news_services/press/documentazione/documents/corpo-diplomatico/corpodiplomatico_stati_elenco_en.html (last visited on Mar. 23, 2010). Rather than listing the PRC as well as the Republic of China (Taiwan), the Vatican only lists China, with an image of the Republic of
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that the other party compromise on an issue which dramatically affects its own fundamental interests. The firmness of these stances naturally makes it difficult for the two bodies to reconcile.21 In the midst of these strained relations, Pope Benedict XVI has made attempts to improve communication between the Vatican and China. One commentator noted, [s]ince becoming pope [in 2005], Pope Benedict XVI has made several attempts to reach out to Beijing, especially in a June 20 letter urging the Communist leadership to permit more religious freedom and restore diplomatic ties with the Vatican.22 This letter, addressed to the clergy and laypeople of China, exhorted Chinese Catholics to remain true to their faith. It also attempted to ease governmental concerns by instructing Catholics to strive to be good citizens. Beijing responded to the Popes letter by saying that it is willing to continue a dialogue with the Vatican, but . . . the Pope must not interfere in Chinas affairs in the name of religion.23 Throughout this conflict, the appointment of church leaders has become a natural point of contention between the Vatican and China. The Chinese government and the Vatican have both argued that they have primary authority to choose which bishops will lead the Chinese diocese. China has bristled against the foreign domination of the Vatican over Chinese Catholicism.24 In hopes of
Chinas flag beside it. The Vatican also has not conceded its authority over Chinese Catholics. In his letter to the Chinese Catholic Church, Pope Benedict XVI emphasized that the Catholic Church communicates the will of God, and therefore should hold the utmost priority in Catholics lives. Pope Benedict XVI, Letter to Bishops, Priests, Consecrated Persons and Lay Faithful of the Catholic Church in the Peoples Republic of China, Vatican (May 27, 2007) (on file with Vatican Library) [hereinafter Benedict XVI, Letter to Chinese Faithful]. 21. Both China and the Vatican recognize the existence of these two areas of dispute but they differ in their approach towards achieving a possible resolution. China demands that the Vatican should take steps to solve the two-China problem [recognizing Taiwan versus the solely the PRC] before China is ready to discuss the independence question, whereas the Vatican expects China to concede on the latter point first by acknowledging the Pope as the head of the universal Church, before proceeding to discuss other matters, including the status of the Vaticans diplomatic ties with Taiwan. These different approaches lead to the present stalemate. Each side is expecting the other to take the initiative to overcome the apparent deadlock. Chan, supra note 10, at 814. 22. See Daniel Griffiths, China Church Welcomes Pope Letter, BBC NEWS, July 2, 2007, http://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/6261260.stm. Journalist Daniel Griffiths commented that: The letter is the latest twist in a saga that stretches back more than half a centuryto when the two sides broke off diplomatic relations after the Communists came to power. The Vatican wants to resume those ties, but there are big differences: China has organized its own Catholic Church, which it says has the right to appoint bishopssomething the Vatican has always disputed. China also insists that the Vatican cut its links with Taiwan, which Beijing considers a renegade province. Id. 23. Id. This statement reflects the same distrust of religious organizations which is so prevalent in the governments White Paper on Freedom of Religious Belief, supra note 9. It is unclear what interference the government references here, but one possibility is the Vaticans recognition of Taiwanese independence. By recognizing Taiwan as independent from mainland China, the Vatican de facto supports the island in its political dispute with China over whether it has achieved true independence or not. 24. The government had several reasons, some doctrinal and some based on statistics, for believing that the Catholic Church in China was thoroughly controlled by the Vatican. CPCA-friendly bishops have cited doctrine as their basis for resisting Vatican authority: [A] reason put forward by some Chinese clergymen is that all bishops are equal before God and that the Pope, the Bishop of Rome,
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encouraging Catholic churches independence from Rome, China has sought to appoint bishops who demonstrate clear loyalty to the PRC, and who promise to lead Catholics in a Chinese-first, Catholic-second manner.25 The Vatican, which is equally insistent that the Church be insulated from political matters and that its bishops submit to papal authority, 26 declared Chineseappointed bishops illegitimate and deemed their appointment a grave violation of religious freedom . . . a grave wound to the unity of the Church.27 In the wake of these appointments, a Vatican correspondent made it clear that the Vatican, while open to what it calls honest and constructive dialogue, will not tolerate unilateral acts by the Chinese Church.28 These appointments and the Vaticans reaction led to a politicized standoff between the government and the Vatican, which Benedict XVI described as a situation of misunderstandings and incomprehension [which] weighs heavily, serving the interests of neither the Chinese authorities nor the Catholic Church in China.29 The allegiance of the local
is but one bishop among many in the world. Furthermore, the spiritual power of a bishop is derived independently from God, not from the Pope. Chan, supra note 10, at 818. The PRC government raises political concerns and historical abuse of religious authority as its motivation for this resistance: The Beijing government . . . cited several specific reasons for securing the independence of the Chinese Church from the Vatican. The main one is that China wants to eradicate any remaining foreign domination of the Chinese Church. Chinese leaders often refer to statistics about the composition of the Chinese Church hierarchy before 1949 to support their claim of unfair outside control. For example, the first bishop of Beijing, appointed in 1313, was a foreign Franciscan monk named Jean de Monte Corvino. It was not until 1685 that a local Chinese priest names Luo Wenzao (Gregorio Lopez) was made bishop of China. Thereafter it was only in 1926 that Pope Pius XI appointed six local Chinese bishops. In 1920 there were 1,417 foreign priests and 963 local priests in China. Twenty years later the corresponding figures were 3,163 and 2,191. In 1948 there were 91 foreign bishops and only 19 Chinese bishops. Out of the 144 dioceses important ones such as Beijing, Guangzhou, Shanghai, Tianjin and Wuhan were all in foreign hands. Those dioceses under the see of Chinese bishops were in fact controlled by their foreign counterparts. Id. 25. Gerald Chan explains the following: The self-consecration of bishops in China did not come about abruptly. For the first two such consecrations, both in 1958, prior approval of the Vatican had been sought after the two candidates were said to have been locally elected. The Vatican refused to grant permission because the election was in contravention of church laws which reserved the right of appointment of bishops solely to the Pope, and also because the Vatican had not received sufficient information about the suitability of the proposed candidates or about the election process which gave rise to the candidature. In the circumstances the papal authority was unwilling to accept the unilateral decision of the Chinese Church. Chan, supra note 10, at 818-19. As a result of these events, [s]ubsequently the Chinese have omitted to seek the Popes approval for further consecrations of bishops. Id. at 819. 26. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 4. 27. Wiley, supra note 19. 28. Id. at 2. BBCs Wiley set forth that, [e]xcommunication is automatic under Church law for bishops who are illegally ordained. Id. The first bishops ordained in China by one of these unilateral acts by the Chinese Church were reputedly excommunicated, as were their ordainers, but it is unclear whether the excommunications really occurred. As yet, the Vatican has neither confirmed nor denied whether the excommunications actually took place and, if so, whether they remain in force. See Chan, supra note 9, at 818-19. The Vatican also said it had received information that bishops had come under strong pressure and threats to take part in the ordinations. If that was proved, the excommunications could be suspended. Wiley, supra note 19, at 1. 29. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 4.
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and national leaders of the Catholic Church in China, as guides for their congregations, is vital for both China and the Vatican.30 Patriotism, defined by the government as an allegiance to the State over all other beliefs, 31 polarizes the Catholics of China and forms the battleground on which the Chinese government and the Vatican clash. The Chinese Patriotic Catholic Association (CPCA), together with the churches it regulates, is the only Catholic group whose activities are considered legal and legitimate by the government.32 The CPCA is a division of the PRCs Religious Affairs Bureau. As an arm of the government, the CPCA naturally demands intense patriotism from its followers. Chinese Catholics who are unwilling to show such patriotism are forced to worship clandestinely in underground churches. Only extralegal churches in China reject government control of religion.33
30. Chinese bishops have chosen to balance the demands of the Chinese government and the claims of the Vatican in three different ways. These leaders, as Benedict XVI outlines, have chosen either to remain faithful to the Church above all, risking government disapproval and even criminal sanctions, to attempt to please both the government and the Vatican, or to reject Vatican influence in favor of a faith which is subject to government control. See id. This choice of loyalties has had serious consequences for Chinese Catholics. Catholics who have openly proclaimed their loyalty to the Pope in defiance of the independent stance of the Chinese Church have been imprisoned and their seminaries forced to close. At present it is estimated that about 100 Catholics are still in detention, including some elderly priests. Chan, supra note 10, at 824. Clergymen choosing this same allegiance continue to suffer hardships or maltreatment of one kind or another, although the general climate for religion in China has improved quite considerably since the late 1970s. Id. at 820. In spite of all these possible consequences, Chinese Catholic allegiance towards the Vatican is still high. People remain very loyal to Rome in their hearts, and even those serving in the Patriotic Church would like to settle things with the Pope, in return for the recognition of the Peoples Republic, of their own election as bishops, and church autonomy. CHING, supra note 10, at 131. 31. Chan, supra note 10, at 820. 32. The expulsion of the papal representative and foreign missionaries in the early 1950s led to the disintegration of the foreign-dominated church structure in China. The Chinese Government subsequently set up a church organization known as the Chinese Catholic Patriotic Association. As emphasized by the authorities, this association is not a church but a civil, political mass organization, serving as a bridge between the government and the church . . . . The association serves to bring together some clergymen and lay people to implement, under the supervision of officials from the Religious Affairs Bureau, the religious policy of the Communist Party, and to report to the government on the requirements of selected Catholic communitiesthose patriotic ones who follow the Party line. The work of the association is to promote the love of ones country and the love of ones religion, in that order . . . . Likewise these associations are the extended arms of government to ensure that church groups in China remain patriotic and autonomous, in the sense that they are not to be dominated or controlled by foreign elements including the Vatican. Chan, supra note 10, at 820. In its White Paper on Freedom of Religious Belief, the Chinese government claims that there are five religious groups in China. One is the Chinese Patriotic Catholic Association. It appears that the PRC intends for this list of major groups to be exhaustive. The government does not discuss any variants on these major groups, but it neither lists unregulated organizations nor denies their existence, leaving the reader with the assumption that it views other groups as illegitimate, or even illegal. White Paper on Freedom of Religious Belief, supra note 9. 33. This patriotism is the same taught by the CPCA: [L]ove of ones country and love of ones religion, in that order. See Chan, supra note 10, at 820. The existence of this underground Church is disputed by some commentators. Some observers say that the Chinese Church is split into the open church which defies the authority of the Pope and the underground church whose followers supposedly remain loyal to him. However, others reject this dichotomy, saying that such an alleged schism does not exist, nor is it helpful for the rapprochement between the Chinese Church and the universal Church. Id. at 817. Still, other commentators assert that far more religious adherents in
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III. INCOMPATIBLE CLAIMS ON ULTIMATE LOYALTY A. A Servant with Two Masters: Dual Claims on Loyalty Where Chinas application of this patriotism and the Vaticans application of Christian doctrine require mutually exclusive actions, Chinese Catholics cannot recognize both the governments and their religions claims to ultimate authority. Chinese Catholics as citizens are bound by their governments directive that religion must abide by the national laws of a socialist society in its current stage of development, its laws and regulations and policy focus,34 and that religion, as a social entity from which religious affairs are generated, must accept regulation of the law.35 Chinese Catholics, however, are also bound by the Vaticans religious doctrine that they must first follow Jesus, who recognized civil authority and its rights when he ordered tribute to be paid to Caesar, but . . . gave clear warning that the greater rights of God must be respected.36 In most situations, these two obligations can be fulfilled simultaneously. Where the Church is silent and the government has given a directive, Jesuss Render unto Caesar maxim37 obliges Chinese Catholics to follow the national law.38 Where the government is silent and the Church has spoken, Chinese Catholics are free to engage in religious expression without the government taking action against them. If both the Church and the government have spoken on a subject, and they have spoken in accord, Chinese Catholics are not forced to decide between directives. Only where the Church and the government have made directly contradictory orders do Chinese Catholics face a conflict of loyalties.
China are part of the underground church than the recognized church. See CHING, supra note 10, at 131. 34. Chinese Official Says Religion has Positive Role in Promoting Social Harmony, BBC NEWS, June 16, 2007 [hereinafter Positive Role]. 35. Id. 36. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 7. It should be noted that Benedict XVI refers here to Matthew 22, in which Jesuss opponents attempt to set a trap for him by asking whether Jews, then under Roman political control, should pay taxes to Caesar. These opponents hoped to either incriminate Jesus with the Romans as a teacher inciting the masses against Roman rule, or to discredit him with the Jews as a Roman sympathizer. In this situation, Jesus confronted the same question presently facing Chinese Catholics: whether God or civic duty should take priority. Benedict XVI quotes Jesuss cryptic reply to this query, [r]ender therefore to Caesar the things that are Caesars, and to God, the things that are Gods, Matthew 22:21, when summarizing the approach that Chinese Catholics, guided by properly installed bishops, should take towards the delicate issue of the relations to be maintained with the agencies of the State. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 7. In the Biblical story, Jesuss reply sufficiently defrayed the situation, but he left the decision of what was Caesars and what was Gods up to his questioners. Chinese Catholics, arguably, have been left by the Vaticans invocation of this principle to determine for themselves (or, as Benedict XVI notes, on the local level, under the guidance of their bishops) how to balance the demands of religion and nationalism. 37. Matthew 22:21. 38. An example of this situation would be the directive to drive cars on the right side of the street. Here, the Church has given no directive, while the government has clearly indicated what it believes to be the proper course of action. The maxim of Render unto Caesar, see Matthew 22:21, obliges Christians to obey commands from their governments, so long as those commands do not contradict Gods commands.
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Where this conflict occurs, the Chinese Catholic must determine whether, in the given situation and perhaps overall, they will identify themselves primarily with their role as citizen or with their role as Catholic. If an individual chooses his identity as citizen over his identity as Catholic, he will always follow state directives, and he will follow Catholic doctrines when the state directives allow. If he chooses his identity as Catholic over his identity as citizen, he will follow Church doctrine always, and state directives only when religious doctrine allows. This choice is fluid, and one individual may choose different allegiances based on the specific issue in conflict and on the strength of his convictions in relation to that matter. But with respect to each point of true conflict between national and religious obligations, each individual must make a choice between the two. Chinese Catholics find themselves in the position of having to disobey either their God or their government when it comes to the issue of birth control. Despite the Vaticans acknowledgement that the worlds rapid population growth is of pressing concern, and its simultaneous fear that the governments may take harsher measures to address it,39 the Vatican directly prohibits the use of artificial birth control in Humanae Vitae. Chinas One-Child Policy, as codified in 2001, directly mandates the use of artificial birth control to prevent multiple births within one family.40 Chinas One-Child Policy may be comprised of precisely the harsher measures Pope Paul VI feared governments would implement to solve rapid population growth. As the Pope feared the implementation of government measures that could effectively compromise the actions of practicing Catholics, China attempted to forestall religious interference with its sovereignty over practical matters within its borders; the Chinese government asserted its influence when it declared that religious organizations are not subject to foreign domination.41 The Vaticans ban on artificial birth control may be exactly the type of infringement on Chinese public policy that its Constitutions drafters sought to prohibit. B. Chinas Claim of Authority by Regulation of Religion The 1982 Constitution of the PRC states: Citizens of the PRC enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion: nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere
39. Humanae Vitae, supra note 1. 40. See FAMILY PLANNING LAW art. 20 (P.R.C.) (The spouses at childbearing age shall deliberately take the contraception measures of family planning, and accept the preferred techniques of family planning. Non-intentional pregnancies shall be guarded against and reduced.). 41. See XIAN FA. art. 36 (1982) (P.R.C.).
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with the educational system of the state. Religious bodies and religious affairs are not subject to foreign domination.42 Lest this constitutional freedom of religious belief be read to mean freedom of religion, the government has gone to great lengths to clarify this provision. In various white papers, the government explains that this protection of religious belief only covers religious activities that do not otherwise conflict with Chinese law.43 These constitutional provisions, especially as they are explained in the 1997 White Paper on Freedom of Religious Belief in China,44 portray religion as something that should be adapted to its context, should be a personal affair, and should give way when it conflicts with national law in the PRC.45 These provisions protect only normal religious activity, as determined by the government.46 Religion may not interfere with the educational system of the state, and it must submit itself to the superior claims of the State.47 By placing these limits on religion, the government does more than just define what is proper religious exercise in China. By reserving a great deal of interpretive authority over religion, the government also effectively promotes patriotism, rather than religion, as its citizens highest moral ideal.48
42. Id. 43. [T]he laws protect the freedom of religious faith, protect the lawful rights of the religious circle, but at the same time, the activities of religion must be within the parameters of the law and in accord with the policy focus of the country and must not clash with the law, legal regulations and policy focus. Positive Role, supra note 34. 44. White Paper on Freedom of Religious Belief, supra note 9. 45. As the Government explained: [T]he Chinese government maintains that religious belief is a citizen's personal affair. However, the construction of a prosperous, powerful, democratic modern socialist country with advanced culture, and the safeguarding of the country's sovereignty and national dignity are the common goals and in the fundamental interest of Chinese people of all ethnic groups, including those who believe in a religion and those who do not. Therefore the people who believe in a religion and those who do not can unite and cooperate politically, and respect each other's beliefs. Religion should be adapted to the society in which it is prevalent. This is a universal law for the existence and development of religion. Now the Chinese people are building China into a modern socialist country with Chinese characteristics. The Chinese government advocates that religion should adapt to this reality. However, such adaptation does not require citizens to give up religious belief, nor does it require any religion to change its basic doctrines. Instead, it requires religions to conduct their activities within the sphere prescribed by law and adapt to social and cultural progress. This conforms to the fundamental interests of religious believers as well as to those of the various religions themselves. White Paper on Freedom of Religious Belief, supra note 9. 46. In none of its interpretations on this section of the Constitution does the PRC government provide a concrete definition for what constitutes normal religious activity. In the absence of any objective interpretative guide as to what the term means, the State remains vested with the power to interpret the clause. This power, in itself, asserts the States superiority over religion, because to declare that the state can know and define what are normal religious activities is itself to advance a religious claim. ANTHONY C. Y U, STATE AND RELIGION IN CHINA: HISTORICAL AND TEXTUAL PERSPECTIVES 145 (2005). 47. White Paper on Freedom of Religious Belief, supra note 9. 48. Any deviation from the norms set by the statewhether the practice of Falun Gong or sacerdotal submission to the Roman papacyis bound to incur governmental censorship and
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China candidly admits that it tolerates religion only because it can serve as a mechanism for encouraging patriotism and loyalty to the State. One government official stated, even though we do not have any religious faith, we are able to comprehend the social effects of religion in a more comprehensive way . . . to lead the masses of religious devotees to contribute positively to the building of socialism and a harmonious society.49 The Chinese governments careful regulation of religious activity demonstrates its attitude that religion is a useful social tool when properly channeled, but that it also can be dangerous when used either to encourage civil disobedience or to manipulate a population.50 The government stresses that [r]eligion should exercise its positive function, providing help and not giving extra trouble.51 Even though it views religion as an antiquated system that should by now have been rendered unnecessary by science,52 the government tolerates religion so long as religious activities do the following: remain within the boundaries set by law, respect the governments superior claims, and encourage citizens to be happier, more devoted patriots.53 While the Vatican claims that state and religion occupy different spheres of personal life and interaction, the Chinese governments objections to religion revolve around the political implications of religion.54 The limitations the PRC places on religious exercise are mainly based on the governments desire to contain religious activity and to channel it towards societal benefits. Chinas discussion of religious freedom clarifies that the only acceptable religion in China is that which
suppression, because the ancient sin of disloyalty (bu zhong) is now supplanted by the crime of being unpatriotic (bu aiguo). YU, supra note 46, at 145. 49. Positive Role, supra note 34. 50. [R]eligion can facilitate social harmony under certain societal and historic conditions and it can stir conflict under certain social and historic conditions. Id. 51. Id. Presumably not giving extra trouble would take the form of refraining from objecting to government laws, policies, or actions, or of keeping religious activities private rather than proselytizing. These practices were cited most heavily in previous sections of the text as the pitfalls of religion. 52. The director of the State Administration of Religious Affairs, Ye Xiaowen explained: The supporters of historical materialism in 18th-century France predicted that religion would be expelled from the stage of history by the constant victories secured by science. But things have not turned out this way over two centuries or so. With the unprecedented developments of productivity, the rapid advance of technology and the enhancement of human civilization all occurring simultaneously, there ought to be more people who face the world and life with a scientific attitude in their awareness, rather than having to seek spiritual solace in an illusory world. But the reality is that not only has religion not died out, its influence is still expanding, increasing at a feverish pitch in some regions. Id. 53. The objective is not to develop religion, but to strive towards enabling religion, which has long existed, to provide a greater service to economic development, social stability, ethnic unity and the unification of the motherland. Id. 54. The PRC reaction to the Vatican in recent years demonstrates this trend. Chinas objection to recognition of Vatican authority in its churches has included discussions of sovereignty and patriotism, which seems to respond to the Church as if it were an alternative state. Chinas objection to the Vaticans recognition of Taiwan, similarly, objects to the Vaticans diplomatic relationship with Taiwan, not to its religious ties with churches within Taiwan. In a similar vein, the governments discussion of its policies on religious affairs in China cited instances of political interference that were conducted under the banner of religion, as the inglorious role foreign religion has played in Chinas history. See White Paper on Freedom of Religious Belief, supra note 9.
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serves to make its followers better citizens of China.55 The PRC holds that constitutionally only patriots are fit to enjoy the freedom to believe, including the religion supposedly of their own choosing56 and that reigning supreme over all other beliefs must be unsullied nationalism, the unquestionable belief in the country, the ancestral state (zu guo).57 Chinas government, partly due to the history of Western religion in China, believes that it has a political reason to fear, or at least to discourage, the openness of mind and will the Vatican claims to encourage.58 The Communistswhose economic reforms have not shaken their basic desire to cling on to powerare all too conscious of the role of the Catholic Church in the demise of Communist rule in countries like Poland.59 However, Chinese Catholics only constitute a small minority of Chinas population, and so they would not likely present a political threat such as the one posed by Catholics in Poland. Even so, such an ideological intervention into legal affairs is precisely the risk the Chinese government sought to forestall by asserting that [r]eligious organizations and religious affairs are not subject to foreign domination.60 C. The Vaticans Claims of Religions Ultimate Authority Pope Benedict XVI addressed the delicate balance between religion and patriotism in his 2007 letter to the Catholic Church in China.61 Addressing the
55. YU, supra note 46, at 145 (Despite the adoption of a constitution that allegedly would transform [the Chinese governments] socio-political body into a modern, secular republic, it has yet to scrutinize and query the legitimacy of its enduring form of political religionthe worship of absolute power invested in the state.). 56. Id. at 146; see also Positive Role, supra note 34 (We advocate freedom of religious faith. But religion, as a social entity from which religious affairs are generated, must accept regulation of the law. It is only by carrying out activities within the ambit of the law that it can enjoy genuine, specific and ample freedom. Therefore, putting the emphasis on strengthening the development of a legal mechanism for religion and on the freedom of religion as a social entity to carry out its activities while accepting its social and legal responsibilities reflect the contribution of human civilization to modern society and its legal system.). 57. YU, supra note 46, at 146. 58. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 4. 59. Teresa Poole, The Sacred Republic of China, INDEP., Mar. 31, 1996, http://www.find articles.com. According to journalist Teresa Poole, the Churchs role in the fall of the Communist government in Poland was not an attempt to replace the state. Rather, the Church merely backed solidarity, which began as a less-than-popular ideology and eventually won political power away from the Polish Communists. Id. 60. XIAN FA. art. 36 (1982) (P.R.C.). 61. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 4. In his letter to the Chinese Catholic Church, Benedict XVI reasserts that, [t]he Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Id. Benedict XVI poses a caveat, however: [A]t the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply. Id.
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Chinese Constitutions prohibition of foreign control of religion, the Pope stressed that the claim of some entities, desired by the State and extraneous to the structure of the Church, to place themselves above the Bishops and to guide the life of the ecclesial community, does not correspond to Catholic doctrine,62 and that [c]ommunion and unity . . . are essential and integral elements of the Catholic Church: therefore the proposal for a Church that is independent of the Holy See,63 in the religious sphere, is incompatible with Catholic doctrine.64 This language firmly asserts that members of the Catholic Church are not truly Catholic unless they submit to the authority of the Pope. Benedict XVI makes clear that without papal authority, a church forfeits one of the fundamental characteristics that ties it to the universal Catholic Church. Consequently, a church is deeply changed for the worse by an assertion of independence from Rome. Later in his letter, the Pope also asserts that the Church is not submissive to the State, but rather that it exercises autonomy over and above that of the State.65 The
The first approach taken by bishops was one of loyalty first to the Church, then to the government. The leaders in this first category, the Pope recognized, were likely to encounter persecution and opposition from the government and, thus, the churches led by these clandestine bishops were forced underground. The second category represents a class of leaders appointed by the government and approved by the Vatican. In recent years, the Vatican has pursued a compromise of sorts, giving its approval to several bishops after they were nominated by the Chinese state church. Id. Even though the Pope has granted his blessing to these bishops, it is uncertain how these leaders, put into their positions by the government and asking for recognition from the Vatican, will choose their primary allegiances on issues where the government and the Vatican conflict. The third category of bishops Benedict XVI describes is the group of bishops who have neither been approved by the Vatican, nor sought Vatican approval after appointment. This third category, supported by the CPCA, is one which submits its religious convictions to the government in cases of conflict between the two. This category ascribes to Catholicism to the extent that its practice does not conflict with, as Anton Yu describes it, unsullied nationalism which is reigning supreme over all other beliefs. YU, supra note 46. 62. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 7. Benedict XVIs letter is directly addressed to the Catholic Church in China and, therefore, the entities making the claim for independence are the Chinese government, the CPCA, and Church leaders seeking to break from the Vatican. This warning is, therefore, specifically directed at the Church in China. 63. Here, Benedict XVI refers to the Chinese governments sanctioning of the patriotic Catholic church, which is approved by the government and structurally independent of the Vatican and the influence of the papacy. The government approves those Catholic churches which are controlled by the CPCA. See China Facts & Figures 2006, http://www.china.org.cn/english/features/china/20 3692.htm (last visited Sept. 16, 2009). 64. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 8. 65. The Pope argues that the Church, rather than acting within the political sphere so as to possibly conflict or coincide with the government, acts exclusively on the spiritual plane, where the State does not and cannot act. This argument seems to be an alternative argument for the Pope. By first urging Catholics to practice their faith as an ultimate authority, and then by resorting to the argument that church and state have non-intersecting functions, the Pope seems to emphasize the primacy of religion more than the separation of church and state. Pope Benedict XVI stated: As far as relations between the political community and the Church in China are concerned, it is worth calling to mind the enlightening teaching of the Second Vatican Council, which states: The Church, by reason of her role and competence, is not identified with any political community nor is she tied to any political system. She is at once the sign and the safeguard of the transcendental dimension of the human person . . . The political community and the Church are autonomous and independent of each other in their own fields. They are both at the service of the personal and social vocation of the same individuals, though under different titles. Their service will be more efficient and beneficial
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Church, Benedict XVI emphasizes, is not a rival to the State, but is instead an entirely separate body which ministers to entirely different needs of an individual.66 Where elsewhere in the letter Benedict XVI states that individuals duty to God is higher than any other duty, here he alternatively suggests that this balance of power does not matter, because the Church and the State serve wholly distinct functions.67 While the Chinese Constitution strictly prohibits foreign domination over religious organizations, the Vatican claims that God has given it the responsibility and the authority to lead national and local branches of the Catholic Church in all respects. Notably, in the letter, Benedict XVI took a firm stand in stating that the proposal for a Church that is independent of the Holy See, in the religious sphere, is incompatible with Catholic doctrine.68 Benedict XVI then summarized the different approaches Chinese clergy have taken when questioned about their dioceses independence from Rome.69 In his discussion of each approach, the Pope firmly asserted that the Catholic Church in China must align itself with Rome. At the same time, he also seemed more concerned about promoting the well-being of Chinese Catholics than about insisting that congregations show allegiance to Rome in defiance of the government.70
to all if both institutions develop better cooperation according to the circumstances of place and time. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 4. 66. [T]he Catholic Church, which is in China does not have a mission to change the structure or administration of the State; rather, her mission is to proclaim Christ to men and women, as the Saviour of the world, basing herselfin carrying out her proper apostolateon the power of God. Id. at 4. 67. This seeming inconsistency in Benedict XVIs assertions could be explained either as an argument in the alternative or as drawing a distinction between the Church and Gods authority. With respect to the first possibility, the Pope could be arguing that there is a distinction between church and state in order to appease the government. The Popes earlier assertion that the duty to God should come first in Catholics lives seems inflammatory, and the Pope could here be attempting to qualify his assertion. If the Pope is drawing a distinction between the Church and God, then he would be arguing that Gods authority is ultimate, but that the Church, as a human institution, is distinct from that level of authority. 68. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 8. The proposal being addressed is the Chinese governments assertion that the Church in China must be independent of the Vatican. 69. Pope Benedict XVI explains that: As in the rest of the world, in China too the Church is governed by Bishops who, through episcopal ordination conferred upon them by other validly ordained Bishops, have received, together with the sanctifying office, the offices of teaching and governing the people entrusted to them in their respective particular Churches, with a power that is conferred by God through the grace of the sacrament of Holy Orders. The offices of teaching and governing however, by their very nature can be exercised only in hierarchical communion with the head and members of the college of Bishops. In fact, as the Council went on to say, a person is made a member of the Episcopal body in virtue of the sacramental consecration and by hierarchical communion with the head and members of the college. Id. at 10 (citations omitted). 70. Most of the Popes comments towards the Catholic congregation in China were exhortations to remain faithful in the face of adversity, not lengthy diatribes against the PRC as a source of that adversity. Throughout his letter, the Pope emphasized the importance of Vatican authority over local Catholic congregations as a necessary element of any Catholics practice of her faith. See generally Benedict XVI, Letter to Chinese Faithful, supra note 20.
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IV. THE CITIZEN-CATHOLICS CHOICE BETWEEN BELIEFS AND STATE For Chinese Catholics, the States demands, and the Vaticans prohibition of birth control, serve as an intensely personal and daily reminder of the pull between law and religion in their lives. For Chinese Catholics, religious belief dictates that each and every marital act must of necessity retain its intrinsic relationship to the procreation of human life71 and, therefore, that artificial birth control violates Gods design for sexuality. For those same persons, however, the One-Child Policy directs that sexuality must not contravene Chinas goal of curbing population growth and that, therefore, Chinese couples should actively prevent reproduction after the birth of their first child.72 Chinese civic and legal duty, then, requires the opposite of the Vatican policy. Only before the birth of a familys first child can marital sexuality retain the relationship to reproduction which the Vatican seeks to protect. After their first childs birth, civic and legal duty mandates that couples prevent the birth of additional children through use of artificial birth control, sterilization, or abortion.73 The birth control policies of the PRC and the Vatican conflict and, therefore, they form a nexus at which the Chinese Catholic couple must choose their primary loyalty.74
71. Humanae Vitae, supra note 1, at 11. 72. The State maintains its current policy for reproduction, encouraging late marriage and childbearing and advocating one child per couple. Where the requirements specified by laws and regulations are met, plans for a second child, if requested, may be made. Specific measures in this regard shall be formulated by the peoples congress or its standing committee of a province, autonomous region, or municipality directly under the Central Government. FAMILY PLANNING LAW arts. 18-22 (P.R.C.). 73. Rebecca O. Bresnick explains: In the PRC, local officials use forced abortion, forced sterilization, and severe economic sanctions to prevent their citizens from reproducing. . . . The PRC government imposed upon its citizens a restrictive one child per couple policy. The government cites population control as the motive for this policy and its economic incentives to limit family size. The PRC government claims not to support or encourage the forced sterilizations or abortions, but does concede that they occur, albeit unauthorized, at the hands of local officials. Rebecca O. Bresnick, Reproductive Ability as a Sixth Ground of Persecution Under the Domestic and International Definitions of Refugee, 21 SYRACUSE. J. I NT L L. & COM. 121, 128 (1995). Bresnick goes on to state that: The reported violations [of reproductive rights in China] are extremely disturbing. One woman has memorialized her order in a book, in which she recounts incidents of forced abortions on women only weeks or days away from birth, aborted late-term babies crying in trash cans until they die, and doctors murdering infants by crushing their skulls with forceps or injecting formaldehyde into the womb. Others report that women are snatched from their beds late at night and brought to 24-hour sterilization clinics, that newborns are killed while still partly in the womb to avoid charges of murder, that IUDs are inserted immediately after giving birth without the womans knowledge, and that national regulations require the insertion of an IUD and forbid its removal after a womans first child. Additionally, powerful social coercion and stiff economic sanctions may be employed. Id. at 128-29. For purposes of this analysis, this article will deal primarily with issues relevant to these sanctions effects on Chinese Catholics choices regarding birth control. 74. This statement assumes that the Chinese Catholic couple referenced fully espouses the doctrines of the Catholic Church. The Vatican position on birth control is by no means uncontroverted, with many Catholics disputing the Vaticans policy arguments against artificial birth control methods and disputing the efficacy of the natural rhythm method, which Paul VI presents as a viable alternative to artificial birth control methods. Tania Jiyoung Cho notes, for example, that [p]ublic
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A. Birth Control as an Instrument of Compliance in China Chinas One-Child Policy was enacted in an attempt to combat Chinas rapid population growth.75 In 1979, Chinas leaders feared that, if drastic measures were not taken to check this growth, the countrys population would soon outstrip the countrys ability to feed its people.76 These leaders, in hopes of avoiding the mass starvation that loomed in the countrys future, chose the One-Child Policy as the best solution to the problem of population growth. Over the years, the policy has received both praise and criticism from the international community, but the Chinese government confirmed its faith in the One-Child Policy when it codified the policy in the Family Planning Law of 2001.77 The Family Planning Law orders that each woman have one child, or no child at all.78 In an attempt to support the policy through cultural change, the law also urges couples to wait until later in life to marry and have children.79 The Family Planning Law outlines strict penalties if a couple violates the One-Child Policy, and it also lists social benefits for which multiple-child families are ineligible.80 The law provides that a couple choosing to have a second child must bear the social costs of the extra childs upbringing. These social costs take the form of, for example, a prohibitively high tax, which most families are unable to pay.81 In addition to the official penalties prescribed by the policy, many couples found to be in violation are subject to much more severe penalties, including use of local informants to discover unauthorized pregnancies, monitoring womens menses at the work place . . . violence against women, forcible late-term abortions, forced
opinion, however, shows that Latin Americans are comfortable with the use of artificial contraceptives. . . the Churchs ban, as far as artificial contraceptives are concerned, has lost some of its effectiveness. Cho, supra note 8, at 433-34. However controversial Humanae Vitae may be within the Catholic Church, its principles remain the official position of the Catholic Church. Therefore, while a Catholic may disagree with Humanae Vitae, he cannot violate the policy without also diverging from the behaviors deemed morally right by the Church. 75. Beginning from the 1960s, the contradiction between the population on one hand, and the economy, society, resources and environment on the other had become gradually apparent. In view of the situation, the Chinese government issued a call for family planning and advocated the use of contraceptives. White Paper on Family Planning (Aug. 23, 1995) (P.R.C.) 76. Id. 77. See generally FAMILY PLANNING LAW arts. 18-22 (P.R.C.). 78. Id. 79. Id. 80. Assessments are imposed on multi-birth families to enable society to bring up their children. This represents both a restriction on having too many childbirths and an obligation of those responsible to pay a certain compensation to society. Assessments for this purpose are made according to local legislation, but the amounts thus collected must in no way affect the familys basic livelihood and their needs in keeping up production and management. White Paper on Family Planning, supra note 75. The amount of this fine varies, but it has been reported to be as high as 600,000 RMB (Chinas Renmibi, roughly 77,000 in US dollars). The government, presumably to better serve the deterrent purpose it described, makes the tax high enough to be prohibitive and to, therefore, enforce the One-Child Policy. See China Slaps $77,000 Fine for Breaching One-Child Rule, REUTERS, May 14, 2007, http://uk.reut ers.com/article/worldNews/idUKPEK28008420070514. 81. Id.
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IUD insertion, forced sterilization, the detention of pregnant women or their family members, and destruction of over-birth families homes.82 The Family Planning Law also directly mandates the use of artificial birth control to achieve the laws goals. The law provides: The spouses at childbearing age shall deliberately take the contraception measures of family planning, and accept the preferred techniques of family planning.83 To facilitate this order, the government provides free contraceptives under Article 21.84 The Chinese government justifies its family planning policy by citing overpopulation as a problem widespread enough to supersede any particular couples desire to have multiple children.85 The government dismissed possible objections that the policy violates reproductive freedom with a valid assertion that, if left unchecked, population growth will significantly harm the living conditions of the people of China.86 Using the same country first, belief second model for its family planning policies that it uses for religion,87 China affirms that the One-Child Policy should take priority over individual interests, saying that, [w]hen there is conflict between social needs and individual interests, a means has to be sought to mediate it.88 Given the pervasive effects of population growth, there is a serious need for widespread compliance with this policy in order to ensure effectiveness; therefore, the governments assertion likely is correct. Given the governments determination that moral objections to the policy should give way to the good of China, Chinese Catholics potential argument that Vatican birth control policies give them a moral obligation to disobey the One-Child Policy likely would be dismissed by the government.
82. See Ann Noonan, One-Child Crackdown, NAT L REV., Aug. 16, 2001, http://www.nat ionalreview.com/comment/comment-noonan081601.shtml. See generally Li, supra note 2 (providing a full discussion of these harsher penalties). 83. FAMILY PLANNING LAW art. 20 (P.R.C.). It is unclear whether this law is meant to have a flexible application, allowing couples to use whatever methods are necessarynot just artificial birth controlto prevent multiple births, but the plain language of the law itself does not leave room for artificial birth control being optional. 84. Id. art. 21. 85. This is a duty incumbent on each citizen as it serves the purpose of making the whole society and whole nation prosperous, and it is not proceeding from the private interest of some individuals. White Paper on Family Planning, supra note 75. 86. The White Paper on Family Planning states that: In a heavily populated developing country like China, if the reproductive freedom of couples and individuals are unduly emphasized at the expense of their responsibilities to their families, children and societal interests in matters of child bearing, indiscriminate reproduction and unlimited population growth will inevitably ensue. The interests of the majority of the people, including those new-born infants, will be seriously harmed. Id. at 390. 87. See supra notes 44-48 and accompanying text. 88. White Paper on Family Planning, supra note 75.
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B. Policies Behind the Vaticans Prohibition of Birth Control In Pope Paul VIs encyclical, Humanae Vitae, the Vatican strictly prohibits the use of artificial birth control.89 The encyclical stresses that marital fidelity and sexual integrity are both vital and fragile.90 In the document, Paul VI notes that the connection between marital sexuality and the possibility of reproduction discourages selfishness by continually reminding spouses of their responsibilities to each other, to their families, and to God.91 Without this important connection, Paul VI warns, promiscuity and a destruction of respect for married partners could result. In light of these consequences, Paul VI goes on to prohibit the use of abortion, sterilization, and any other action intended to prevent procreation.92 As a Vatican statement of moral law, Humanae Vitae binds all Catholics.93 Humanae Vitae arguably leaves no room for deviation by Catholics whose legal obligations conflict with its provisions. Anticipating arguments against the application of Vatican policy in Humanae Vitae,94 Paul VI notes that a lesser of two evils argument would not justify resort to artificial birth control, and that no wrongful action could be justified as an alternative to a greater wrong.95 An
89. Humanae Vitae, supra note 1, at 14. 90. Id. at 9. 91. See id. (It is not confined wholly to the loving interchange of a husband and wife; it also contrives to go beyond this to bring new life into being.); see also id. at 10 (Married love, therefore, requires of husband and wife the full awareness of their obligations in the matter or responsible parenthood . . . [T]he exercise of responsible parenthood requires that husband and wife, keeping a right order of priorities, recognize their own duties toward God, themselves, their families and human society.). 92. Id. at 17 (setting forth the consequences of use of artificial methods); id. at 14 (listing unlawful birth control methods). Paul VI exempts natural birth control, including the rhythm method, from this prohibition. Id. 93. Within this encyclical, Pope Paul VI goes into some discourse on natural law, and the Popes authority to interpret Biblical truth. Although this discourse goes to the heart of the Vaticans ability to prescribe doctrine for the Catholic Church, it is too extensive to be repeated here. See generally Humanae Vitae, supra note 1, at 11, 18-20. For the purposes of this discussion, it is sufficient that Pope Paul VI noted that [t]he teaching of the Church regarding the proper regulation of birth is a promulgation of the law of God Himself. Id. at 20. 94. The policy in Humanae Vitae, in addition to being unpopular, also went against the recommendations of the papal council charged with proposing a decision to Pope Paul VI with regard to birth control. See Charles B. Keely, Limits to Papal Power: Vatican Inaction After Humanae Vitae, in THE NEW POLITICS OF POPULATION: CONFLICTING CONSENSUS IN FAMILY PLANNING 232 (Jason L. Finkle & Alison McIntosh eds., 1994). 95. Pope Paul VI writes: Neither is it valid to argue, as a justification for sexual intercourse which is deliberately contraceptive, that a lesser evil is to be preferred to a greater one, or that such intercourse would merge with procreative acts of past and future to form a single entity, and so be qualified by exactly the same moral goodness as these. Though it is true that sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil or in order to promote a greater good, it is never lawful, even for the gravest reasons, to do evil that good may come of itin other words, to intend directly something which of its very nature contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or of a society in general. Humanae Vitae, supra note 1, at 14. Chinese Catholics use of artificial birth control is likely unlawful according to Humanae Vitae even though the PRCs sanctions for breaking the One-Child Policy give the gravest reasons to obey the law rather than the Vatican doctrine.
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argument that Chinese officials mandate birth control would seemingly fall under this category, especially since the encyclical specifically addresses a situation such as the One-Child Policy in its discussion of the consequences of artificial methods.96 The Vaticans preemptive arguments leave Chinese Catholics without a way to derogate, short of defiance, from their obligations under the Humanae Vitae doctrine. Resort to artificial birth control, therefore, requires either that Chinese Catholics flatly disobey Humanae Vitae or attempt to discount it,97 rationalizing their disobedience. Either approach, however, requires Chinese Catholics to subsume their religious beliefs in order to accommodate civic duty and adherence to state directives. The Vatican began Humanae Vitae by noting that governments could potentially address population growth concerns by taking harsher measures to control birth rates.98 Even after those feared harsher measures took the form of the One-Child Policy in China, the Vatican vowed that it did not seek to interfere with politics, but instead, that it sought to promote the most just society possible99 through encouragement of, potentially political, dialogue. Humanae Vitaes prediction of harsher measures suggests that the most just society possible, in the Churchs view, would not include a policy which so strongly encourages, or even requires, citizens to practice artificial birth control, as does Chinas One-Child
96. The Pope Paul VI encyclical states: Finally, careful consideration should be given to the danger of this power passing into the hands of those public authorities who care little for the precepts of the moral law. Who will blame a government which in its attempt to resolve the problems affecting an entire country resorts to the same measures as are regarded as lawful by married people in the solution of a particular family difficulty? Who will prevent public authorities from favoring those contraceptive methods which they consider more effective? Should they regard this as necessary, they may even impose their use on everyone. It could well happen, therefore, that when people, either individually or in family or social life, experience the inherent difficulties of the divine law and are determined to avoid them, they may give into the hands of public authorities the power to intervene in the most personal and intimate responsibility of husband and wife. Id. at 17. This discussion, interestingly, shows that cultural sentiment can pose an obstacle to legislative action. Given the relatively small size of the Catholic community in China (generous estimates place Catholic followers at ten million, and China has a population of well over a billion people), Chinese Catholics could not have prevented the Chinese mandate of artificial birth control use. Therefore, they are likely not responsible for encouraging it with a neutral reaction to Humanae Vitae. Pope Paul VIs discussion, however, seems to contain the assumption that, once a government has chosen to intervene on the issue of birth control, citizens cannot fight that intervention, but only regret that the Church has not influenced national social views enough to prevent such a law. This course of resignation and regret, as discussed in Part III of this article, seems to be the only valid option available to Chinese Catholics. 97. In order to claim that Humanae Vitae does not create a moral obligation on the part of Catholics, but instead that it gives a non-mandatory opinion of the Vatican on a moral issue, Catholics would have to presume that papal statements are not truly authoritative. In Humanae Vitae, the Pope asserts that, [t]he teaching of the Church regarding the proper regulation of birth is a promulgation of the law of God Himself. Id. at 20. Pope Paul VI also states that, [s]ince the Church did not make either of these [moral or evangelical] laws, she cannot be their arbiteronly their guardian and interpreter. Id. at 18. In order to make the birth control directives non-mandatory, then, Chinese Catholics would have to flatly reject these papal assertions. 98. Humanae Vitae, supra note 1, at 2. 99. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 4.
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Policy. Rather than objecting outright to Chinese birth control policies, however, Pope Benedict XVI has first and foremost sought to gain Chinese recognition of papal authority. In his letter to Chinese Catholics, Benedict XVI mostly avoided commentary on specific PRC policies, and he only hinted at the issues of family planning and birth control when he vaguely encouraged Chinese Catholics to protect family values.100 C. A Choice Constrained: Chinese Catholics Birth Control Options While Humanae Vitae directly contradicts the Chinese family planning policy, it nevertheless protects a substantially different interest. In Humanae Vitae, Paul VI stresses that sexual relations are important for strengthening marriages,101 and that severing sexuality from reproduction, as with birth control, would lead to moral laxity and the weakening of marriage.102 The One-Child Policy, though it clearly affects marriage through its limitations on reproduction,103 only does so incidentally. The policys ultimate goal is to protect Chinese citizens quality of life by keeping population growth under control. The One-Child Policy, combined with the urgings from the Vatican, forces Chinese Catholic couples to sacrifice one of two important values by mandating that they resort either to the use of artificial birth control or to abstinence. If the Vatican keeps to its stated policy of attempting to bring about openness of mind and will to the demands of the common good,104 it will disapprove of the One-Child Policy, but likely will show its disapproval in terms of official diplomatic posture rather than active political opposition.105 The Pope has seemingly tabled the issue of birth control in favor of other issues, such as papal authority, which have broader implications for the Vaticans relationship with the Catholic Church in China. Benedict XVI has not raised the issue of population control in his discussions with the PRC.106 Benedict XVI, as Paul VI did before him, has avoided questions about specific policies in order to better the chances that papal authority will be recognized in China. This avoidance follows the same logic as the Vaticans silence on birth control when dealing with European countries under Soviet rule. As Charles Keely explained, the Vatican
100. See generally Benedict XVI, Letter to Chinese Faithful, supra note 20. 101. [Sexual activity between spouses] . . . does not, moreover, cease to be legitimate even when, for reasons independent of their will, it is foreseen to be infertile. For its natural adaptation to the expression and strengthening of the union of husband and wife is not thereby suppressed. Humanae Vitae, supra note 1, at 11. 102. Id. at 12-14. 103. Id. at 2, 5, 10, 17, 18, 21, 22, 23. 104. Benedict XVI, Letter to Chinese Faithful, supra note 20, at 11. 105. While the Church likely disapproves of the One-Child Policy, its concern for the Catholics of China probably supersedes any qualms it has about the policys effects. The Churchs primary objective in China, at least for the moment, is the establishment of more regular and civil diplomatic ties. Strong moral stances on detailed, practical issues, such as birth control, would upset already delicate SinoVatican relations. See Keely, supra note 94, at 232. 106. Benedict XVIs silence on this issue may be interpreted either as acquiescence to Chinas policies on birth control, or as a choice on his part to prioritize other issues.
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simply chose to preserve the tenuous loyalty it held in Soviet Europes socialist climate, rather than to address the specific issue of birth control. Keely notes that: Given birth control practice and the weakening loyalty to the papacy [in European countries], what would the Church gain by trying to outlaw or circumscribe access to birth control? If anything, Vatican political success in this instance, an unlikely outcome in these countries, might weaken loyalty to the Church and lead to broad civil disobedience to laws inhibiting birth control.107 As in Soviet Europe, Catholicism in China is weak. Consequently, the Vatican likely has avoided the issue of birth control because it is too politically costly. The Vaticans hesitation to address this issue, however, has left Chinese Catholics with an unresolved legal and ideological dilemma. Given the opposing directives from their church and their state, Chinese Catholic laypersons must choose one of three approaches: follow Church policies first, attempt a balance between Church and government policies, or tailor religion to fit state directives. As outlined above, the conflict between these policies forces Chinese Catholics to choose whether they will follow their governments instructions by using artificial birth control, or Vatican policies by refusing artificial birth control. Since the Vaticans stance on birth control has often been challenged by Catholics,108 Chinese Catholics incentives may well bias them towards choosing national law over religious doctrine. The consequences of violating the One-Child
107. Keely, supra note 94, at 232. These same policy concerns apply in China, because general loyalty to the Pope, already discouraged by the government, would be seriously weakened by a strong Vatican insistence on its birth control policies. Keely bolsters this argument stating: In Asia, the Church was confronted for the most part with non-Catholic countries, many of which had clear birth control policies and programs, and the Churchs prospects for changing these policies was minimal. In some countries (China, North Vietnam, and North Korea), the major item on the Churchs agenda was obtaining a diplomatic understanding that would allow the Church to function. The Philippines was the single Asian Catholic country. There, strong government policy toward family planning in the early 1970s led to one of the deals mentioned earlier [that the Pope remained silent on issues in return for better diplomatic relations]. Abortion and sterilization were to be officially discouraged and voluntarism was to be guarded, but in the end the family planning program would exist without constant attack from the Churchs hierarchy. Id. Although the Vatican has not expressly stated that it will refrain from attacking Chinese family planning policies, it has refrained from specifically addressing those policies during the recent attempts at diplomacy. Id. 108. Cho explains that: Many Catholic women deal with the religious conflict by believing God is comprehensive and generous, and trust that they can decide for themselves whether to use contraceptives or obtain an abortion, yet still be with God. It appears some Latin American women recognize the Pope as head and spiritual leader of their church, but believe his stance on abortion and contraception is either not divinely mandated and only an inspired suggestion. Cho, supra note 8, at 435 (citation omitted). Chinese Catholics can likely employ this same logic to justify complying with Chinese policies requiring the use of artificial contraceptives, by determining that the governments demand, viewed comprehensively, renders their compliance with that order either innocent or the lesser of two evils.
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Policy are in some cases very dangerous, and in all cases very harsh.109 The consequences, in the alternative, for using birth control against Vatican policies are less immediate than government action, and they relate instead to an adherents conscience and spiritual matters. Many of the worlds Catholics reject the Vaticans ban on birth control due to extenuating circumstances such as poverty, reasoning that their God both recognizes the purity of their motives and understands the circumstances that render birth control necessary.110 The mere fact that resort to artificial birth control would be considered justifiable by many Catholics, however, does not undermine the fact that Chinese Catholics would have to act contrary to their religious convictions in doing so. With regard to birth control, however, the Chinese Catholics alternatives are less clear. While some bishops and churches, choosing to reject government control over their practice, adopt a clandestine approach by meeting in secret,111 Chinese Catholics who object to the One-Child Policy on religious grounds are probably unable to secretly give birth to additional children. For Chinese Catholics, seeking to balance both religious doctrine and government mandates in a compatible manner likely would take the form of rejecting artificial birth control, and instead strictly using the natural rhythm method for birth prevention.112 In using the natural rhythm method of birth control, couples would adhere to Vatican teachings requiring that each marital act retain its connection to reproduction, but they would do so in the face of high stakes; if the method failed to prevent the birth of additional children, they would face serious legal trouble. In such a scenario, with the risk of severe penalties, Chinese Catholics most likely would resort to abstinence or abortion more often than Catholics outside of China who only face practical, but not legal, consequences when they give birth to additional children. As even Paul VI recognized in the introduction of Humanae Vitae, feeding and providing for a large family has become increasingly difficult as a result of rapid population growth.113 For Chinese Catholics, however, the economic pressure of
109. See generally Li, supra note 2; Noonan, supra note 82 and accompanying text. As Ann Noonan describes, women pregnant with a second child have been forced to have abortions and sterilization procedures. These penalties are drastic in any circumstances. However, as Noonan suggests, the violence of the procedures themselves can also pose serious health dangers for the women forced to undergo them. Even from a purely economic standpoint, the PRC imposes fines for violating the One-Child Policy far in excess of the average rural couples annual income. As a result, couples violating the policy face financial ruin, and they risk the mothers physical well-being in the process. Id. 110. See Li, supra note 2, at 435. 111. See Benedict XVI, Letter to Chinese Faithful, supra note 20, at 8. 112. This method, also known as the calendar method and natural birth control, is a method by which couples monitor a womans menstrual cycle and refrain from sexual activity during times at which conception is most likely. In Humanae Vitae, Pope Paul VI condemned only the use of artificial birth control methods, thus implicitly approving the use of natural birth control. See generally Humanae Vitae, supra note 1. 113. [N]ot only working and housing conditions but the greater demands made both in the economic and educational field pose a living situation in which it is frequently difficult these days to provide properly for a large family. Id. at 2. While this burden admittedly is often prohibitively high, particularly in developing countries, the additional burden of Chinas government sanctions for disobeying the One-Child Policy is prohibitively high even in cases where strictly financial pressures would be overcome by a sense of moral obligation.
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having an additional child to nurture and to house is greatly exacerbated by the Chinese governments imposition of a taxusually equal to or much more than a typical familys average yearly earningsfor violation of the One-Child Policy. For most couples in China, the extreme nature of this tax means that the couple would not only be economically strained, but would be economically crippled, by incurring this tax obligation.114 The tax, therefore, almost forces Chinese Catholics to compromise their religious convictions and obey the Family Planning Law. Under the threat of a tax that few couples can possibly afford to pay, attempts to follow government policies and Vatican directives simultaneously through Vatican-sanctioned birth control methods are likely impractical. The natural rhythm method of birth control depends on couples estimates of a womans fertility, which is difficult to monitor, and so it likely is inaccurate and unreliable. The tax is prohibitive enough that couples attempting to use only natural family planning methods will feel almost irresistible pressure to resort to abortion, which is just as strongly condemned by the Vatican as artificial birth control,115 if they nevertheless become pregnant.116 If natural birth control methods are unreliable, Chinese Catholic couples must either resort to abstinence117 or to the use of artificial birth control. The possibility of job loss, heavy taxes, forced abortion, or forced sterilization for Chinese citizens who disobey the One-Child Policy ensures that most Chinese Catholics simply cannot afford to overtly follow the Vaticans position on birth control. In the face of unbearable sanctions for disobeying Chinas family planning
114. It should be noted that Chinas Family Planning Law also provides rewards and incentives to couples that have only one child. In addition to the harsh penalties imposed on couples for violating the policy, the loss of these benefits creates an opportunity cost which only intensifies the government incentives to comply. Chapter 4 of the Family Planning Law, in relevant part, states that, [t]he state shall reward the spouses practicing family planning according to the provisions . . . . The citizens who marry and bear children at a late age may receive the awards of extended wedding leaves, childbearing leaves or other welfare treatments. See FAMILY PLANNING LAW arts. 23-28 (P.R.C.). Additionally, couples that comply with the One-Child Policy can receive medical benefits, vacation benefits, and even public assistance options. Id. These provisions demonstrate that, in addition to penalties for noncompliance, China seeks to provide social benefits to complying couples. 115. We are obliged once more to declare that the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as a means of regulating the number of children. Equally to be condemned, as the magisterium of the Church has affirmed on many occasions, is the direct sterilization, whether of the man or of the woman, whether permanent or temporary. Humanae Vitae, supra note 1, at 14. 116. While the One-Child Policy undoubtedly increases the risks Chinese couples face when attempting to prevent the birth of additional children, it can be argued that the Vaticans position in itself creates an untenable set of pressures on a couple which, for whatever reason, cannot afford to provide for additional children. Tania Jiyoung Cho notes that, [t]he paradox of the Churchs agenda is clear. The Church adamantly tries to protect the world from abortion, yet opposes contraception which would greatly reduce the number of abortions. Cho, supra note 8, at 433. 117. Paul VI never advocated total abstinence for married couples, but instead offered periodic abstinence as a means of preventing births without resorting to artificial birth control. He described such abstinence as periodic continence, and reasoned that, self-discipline of this kind is a shining witness to the chastity of husband and wife and, far from being a hindrance to their love of one another, transforms it by giving it a more truly human character. Humanae Vitae, supra note 1, at 21. The right and lawful ordering of birth demands, first of all, that spouses fully recognize and value the true blessings of family life and that they acquire complete mastery over themselves and their emotions. Id.
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policy, these citizens arguably do not have a true choice to defy the policy. In the conflict between Chinese family planning policies and Vatican policies against artificial birth control, then, Chinese Catholics are realistically left with only two options: obey the State rather than the Vatican, or attempt to balance the conflicting demands of church and state. V. CONCLUSION Chinese Catholics find themselves in the midst of a battle for their ultimate loyalty. China claims that the demands of the State must take precedence over all other claims. The Vatican, by contrast, argues that the orders of the Church represent the will of God, and that they consequently supersede all other authority. The crux of this battle, however, seems to be that China and the Vatican cannot agree on whether their differences are founded on politics or morality. Chinese responses to the Vaticans attempts to restore diplomatic relations have focused on questions of sovereignty, and on the Vaticans recognition of Taiwan as a separate stateissues typically reserved to relations between states.118 Chinas statements of concern about Vatican leadership within Chinese borders have emphasized the need to keep the Vatican from infringing upon Chinas ultimate authority in the lives of its citizens. The Vatican, on the other hand, has primarily addressed China with assertions of its moral authority. In its resistance to PRC-appointed bishops, the Vatican has consistently cited the need for uniformity in the doctrine of the global Catholic Church. Benedict XVIs letter to Chinese Catholics emphasized that moral leadership, when not coming from the authority of the Pope, was not true Catholicism. The goals of Chinas and the Vaticans birth control policies do not directly oppose one another, even if the legal and doctrinal structures implemented to further those goals do. Chinas birth control policies are not based upon arguments for the morality of contraception; instead, the policies are a means to a larger goal of population containment. The Vaticans birth control policies are not diatribes against population control, but rather moral directives intended to protect the institution of marriage. The goals behind these two policies do not conflict, only the means of implementing them do. The conflict over birth control could possibly be avoided by creative negotiation and careful cooperation. However, the conflict will not be resolved if China and the Vatican continue to negotiate in separate spheres. The interests both are attempting to protect through their birth control policies are far more important to them than the restoration of the Sino-Vatican relationship.119 Chinas concern for
118. See supra notes 19-22 and accompanying text. 119. Reconciling these interests would require the selection of different means of addressing these important issues. That said, the Vatican is seemingly unwilling to choose another way to protect the moral interests addressed by Humanae Vitae, and China is not likely to lift the mandated use of artificial birth control given its continuing population-related concerns.
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population control and the Vaticans concern for the protection of marriage are both, in their views, non-negotiable. The details of addressing those concerns, the public stances both take toward Chinese Catholics, and the rhetoric each uses to claim precedence over the other, however, are negotiable. Where China speaks of politics and the Vatican speaks of morality, neither party addresses one anothers deepest concerns. There is no clear-cut way out of this conflict for the Vatican and China if meaningful discussions cannot take place to explore ways to reconcile their competing policies. In such a climate of opposing interests and barriers to compromise, Chinese Catholics seem poised for a crisis of religious and political faith. It is up to the Chinese government and the Vatican to work collectively to alleviate, and perhaps fully resolve, this crisis.

Birth Control Dilemma for Chinese Catholics Under One-Child Policy

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Birth Control Dilemma for Chinese Catholics Under One-Child Policy

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