DENG Jingqiu*

 

Abstract: Women’s rights are essential human rights recognized by the international covenants on human rights and protected in the constitutions and laws of countries. In the context of implementing the three-child policy in China, women are facing pressures from childbearing and bringing up children as well as trying to have a career. It is clearly stipulated in Article 49 of China’s Constitution “the mother is protected by the state,” the constitutional principle of equality of men and women shall be incorporated into the interpretation of this article, fully respecting women’s subjectivity and equal rights and affirming the social benefits of childbearing and bringing up children. With the introduction of the three-child policy, the protection of women’s rights shall focus on their reproductive rights, right to health, right to work and equal rights within the family. The system of women’s rights is complex, relates to identity and must be open to the future. The state has the obligation to fully respect, actively promote and promote in a narrow sense the realization of women’s rights. To better coordinate the implementation of the three-child policy and the protection of women’s rights, we should introduce the concept of social gender equality, improve the system of public childcare services, home care leave and equal employment, and promote the implementation of relevant laws and policies with special attention being paid to women in rural areas and single mothers.

 

Keywords: women’s rights · human rights · mother · three-child policy · national obligation

 

 

With the population rapidly aging, the three-child fertility policy has been gradually pushed forward. However, the implementation of this policy has caused serious “work-family” conflicts for women of childbearing age. Such conflicts and the pressure caused by them may further intensify women’s anxieties about giving birth and even fear of the role of motherhood, which, in turn, translates into resistance to marriage and childbirth.¹ The deep-seated causes for this phenomenon include the awakening of women’s self-consciousness, economic pressure, and home care pressure, as well as the social fertility culture that desperately needs to be improved. All these lead to a lack of motivation for women to have children. Therefore, it is particularly important to build a legal system and policy system that are more inclusive, more in line with the characteristics of the times, and more responsive to the actual needs of women, which can provide more comprehensive rights protection for women in the context of the three-child policy.

 

Mothers are recognized by international human rights documents as being subjects of distinct human rights, as well as subjects of rights recognized by the Constitution and legal norms of China. In China, the first constitutional document confirming the rights of mothers was the “Administrative Program for the Shaanxi-Gansu-Ningxia Border Region”, which was adopted in November 1941. After 1949, both the Common Program of the Chinese People’s Political Consultative Conference and the subsequent Constitution stipulated the constitutional role of mothers, and adopted a consistent statement: “Marriage, the family, and mother and child are protected by the state.” Regarding the normative connotation of the provision of “the mother is protected by the state” in the Constitution, the theoretical research in China mainly focuses on the following two aspects: One is the constitutional principle theory. This point of view, mainly found in the constitutional literature in the 1980s, believes that the above-mentioned provision is an indispensable content for the protection and consolidation of the socialist marriage and family system, serving as one of the important principles of marriage and family relations in a socialist society, and fully manifesting the principle of socialist humanitarianism. Adhering to this principle is conducive to achieving the equality of men and women, giving full play to the role of the family in bringing up the next generation in a socialist society, upholding good social conduct, and developing united and harmonious marriage and family relations.² The other is the theory of the social rights of vulnerable groups. This view holds that “the mother is protected by the state” is a social right directly stipulated in the Constitution. This provision imposes an obligation on the state, especially on the legislators, to protect mothers’ enjoyment of their relevant rights.³ The state shall practice protection for women, mothers and other vulnerable persons with specific identities, providing them with certain opportunities and material assistance, giving them special care and assistance, and making up for their disadvantages and unfair treatment caused by their physiological features.⁴

 

The above research reflects, to a certain extent, the constitutional connotation of “the mother is protected by the state,” of which the theoretical value is undeniable, yet there are also some limitations. Firstly, the constitutional principle theory focuses on the overall construction of the family, ignoring the independent role of the mother as “a person in the family.” The framework of such analysis is relatively simple and general, and lacks substantive analysis of the normative content of this provision. Following this path would make it difficult for subsequent analysis to provide more targeted support for women in the specific “social role” of being a mother or in their “family roles.”⁵ For example, how to make a more precise policy design for working women who are mothers? How do the support measures and protection policies needed by mothers of preschool children aged 0-6 differ from those needed by mothers of children aged 7-15? Second, understanding “the mother is protected by the state” as a social right is somewhat one-sided and tends to be oversimplified, which is not good for manifesting its rich normative connotations. The rights enjoyed by mothers include positive rights such as getting help from the state and negative rights such as reproductive autonomy and noninterference of upbringing and parenting behaviors. Besides, according to the traditional theory of social rights, the weak or the disadvantaged groups in society are the main holders of social rights, for the disadvantaged can hardly survive and develop by relying on their own abilities and efforts only, and they can only resort to the help of the strong.⁶ Yet, in reality, strength and weakness are relative concepts, there are no strict criteria for defining them, and there is also great disagreement on how to distinguish them.

 

The outstanding feature of human rights is that it pays special attention to and highlights the obligation of the state to protect the realization of human dignity, which is based on the status of a person per se, rather than a certain social status or specific talents and abilities of a person. As it is expressed in the International Bill of Human Rights, everyone has the “inherent” dignity, i.e., everyone has dignity, not because of whether he or she is a man or a woman, or a member of a certain group, or whether he or she has achieved anything, but just because he or she is a human person.⁷ Achieving equality of men and women and protecting women’s rights have become the core values and codes of conduct for protecting human rights. That “the mother is protected by the state” pays attention to the reproductive and upbringing behaviors of women with the specific status of “mothers” and the rights that all women shall enjoy based on their inherent human dignity. Correspondingly, this provision shall not remain as just being part of some declarations and principles. Rather, it should clarify the specific content of each and all of the rights from a legal perspective. From the perspective of basic human rights, and starting from the normative connotation of “the mother is protected by the state” in the text of China’s Constitution, this paper analyzes the system of women’s rights, which needs to be paid close attention to in the context of the “three-child” policy, its substantive content and the practical challenges being faced, as well as the corresponding obligations of the state, hoping to provide strong theoretical support for improving China’s legal system and enhancing the effectiveness of relevant measures.

 

 

Generally speaking, when it comes to mothers, people tend to associate them directly with women, family, children, etc. These indeed constitute the necessary elements for us to define the concept of the mother in the sense of legal norms. The cognition and construction of women’s rights are also closely related to the image of the mother outlined by the above-mentioned content. In reality, the mother often becomes the social gender expectation for all women, and women often passively accept the role of mother. We should first analyze the concept of “mother” in the constitutional text and start from the constitutional principle of equality of men and women to understand the normative connotation of “the mother is protected by the state,” combined with the new problems brought about by the “three-child” policy.

 

 

Semantically, the word “mother” has distinct traits of kinship and attributes of identity. Women and mothers are conceptually overlapping, with a relationship of including and being included. A woman is a concept in the sense of social gender, as opposed to a man, while a mother is more a definition in the sense of fertility, mainly with relation to children.⁸ From this perspective, motherhood is reflected in a kind of relationship, i.e., the relationship that mothers bring up and take care of children for their continuous growth and development. The attributes associated with “mother” also include “blood relationship,” “fictional blood relationship,” “family role” and “rights and obligations with children,” etc. Linguistically, the mother is a subset of women. In the traditional sense, women with the identity of mothers need to take on more responsibilities with regard to the reproduction and upbringing of children. This has caused women, due to this role, to be faced with more practical obstacles to self-development and value realization, as well as more restrictions on the realization of rights such as the right to free employment and the right to health.

 

In the formulation of constitutional norms, “mother” has a wider extension, which should cover pregnant women, mothers who have lost their children, biological mothers, adoptive mothers, stepmothers, and other subjects. Take the Constitution of China as an example. First of all, in the first paragraph of Article 49 of the Constitution, it stipulates that “Marriage, the family, and mother and children are protected by the state.” In this formulation, “mother” is juxtaposed with “marriage,” “family” and “child.” The extension of “mother” is not bound by other elements in the same position, and its identity is not based on the aforementioned marriage relationship, and the rights of mothers who give birth out of wedlock are also protected by law. Second, the constitutional concept of “mother” is inclusive and open. The provisions of the law are somewhat referential to defining the concept in the Constitution. For instance, in the legislative provisions, the connotation of “mother” includes “a special family role generated by a legally fictioned foster relationship,” e.g., Article 1111 of the Civil Code — Marriage and Family stipulates, “as of the date of establishment of the adoptive relationship, the provisions of this Law governing the relationship between parents and children shall apply to the rights and duties in the relationship between adoptive parents and adopted children.” Therefore, in the Constitution, “mother” shall include adoptive mothers, stepmothers and other subjects. Third, the concept of “mother” in the modern legal sense is the result of social changes and the overall development of legal language. In addition to recording the existing body subjects in human society and the relationship between different subjects, legal terms per se also need to have a kind of interactive relationship with social development. As a basic legal term, the concept of “mother” is also affected by social changes and domain language development. The evolution of the concept of “mother” has been a developing process from “direct blood relationship” to “direct blood relationship plus fictional blood relationship.” Consequently, the “mother” in the constitutional norm retains the meaning as in daily life and has a unique connotation due to its existence and application in the legal system. To sum up, the mother is a subject of special identity based on either natural blood relationship or legally fictioned foster relationship. This connotation includes both the mothers in natural blood relationships and the mothers in fictional blood relationships and constructs a protection system centered on the “mother-child relationship.”⁹

 

 

To interpret the connotation of “mother is protected by the state,” we still need to put it in the overall framework of the principle of equality of men and women as provided in Article 48 of the Constitution of China. While interpreting, the inherent requirements of this principle should be taken into account so as to maintain the continuity, consistency and coherence of the constitutional norm system. It is by no means that the Constitution’s requirement for equality of men and women is just pro forma. Instead, it should be interpreted from the perspective of substantive equality, respecting and protecting the equal dignity and rights between men and women, facing up to the substantive differences between men and women, and reflecting on the stereotyped image of their social roles and respective division of labor over the years, enabling men and women, especially women, to have independent and voluntary personal choices and equal opportunities, and maximizing their respective advantages and potentials so that they can both do what they can base on the substantive equality in personality,opportunities, and basic rights. On the one hand, we should respect a person’s subjectivity and human dignity and try to make sure that everyone can freely choose and decide their own behavior and lifestyle. Equality of personality is the basis and the starting point of logic for equality of men and women. Every member of society, whether a man or a woman, as long as they have the same potential, should have the same starting point and enjoy the same opportunities for development, and be able to freely choose and decide their own behavior and lifestyle. On the other hand, we should recognize the objective social gender differences between men and women and implement special care and fair compensation for women. Such social gender differences are by no means an excuse for discrimination against women, but a basis for exercising special protection of women’s rights. For example, based on their physiological features, women have assumed more obligations for reproduction. The social benefits of women’s childbearing should be fully recognized and supplemented by specific forms of compensation and burden sharing according to their needs, in pursuit of a realistic path for and a reasonable balance in achieving equality of men and women.¹⁰

 

First, women do not lose their subjectivity and personal dignity on assuming the role of mother. Modern society highlights people’s subjectivity to realize each individual’s value and overall development. Women and men have equal opportunities for development and the possibility to engage in various occupations and play all kinds of social roles. To a certain extent, when a new life is born in the mother’s womb, upbringing is naturally defined as women’s instinct and becomes an important feature of the image of mother, which has resulted in motherhood becoming the social gender expectation for all women. Besides, based on the traditional social gender division of labor, the public has completely equated childbearing and upbringing with women, forming the stereotype that “childbearing is women’s business.” The labor of childbearing and upbringing is considered a subordinative work with low capacity, and this, in turn, causes women to become subordinates of the family,¹¹ which has undoubtedly made motherhood a burdensome role and an identity shackle for women. Any changeless or compulsory role model will restrict women from realizing their rights, depriving them of independent subjectivity of personality and keeping them from freedom and self-development.

 

Second, the labor of women’s childbearing and upbringing has profound social benefits and not negligible public goodness. Population reproduction is of great significance for the continuation of humanity and the well-being of society. Childbearing and bringing up children is an investment in the child and the family and an inexhaustible source of power for social development, for society will benefit from these future national pillars, potential employees and taxpayers.¹² For this reason, protection of the mother is stipulated in the fundamental law in China. In reality, women are the subjects of childbearing and the main undertakers of parenting and caring responsibilities. They bear huge health costs and self-development opportunity costs and make significant contributions or even sacrifices for the family and the whole society. However, their contributions are taken for granted, and cannot be converted into monetary value as they are limited to the private domain of the family. Hence, they are caught in “motherhood punishments” such as “income traps” and career development “ceilings.” Childbearing has long been considered a private affair of the family and excluded from the public sphere. However, “human reproduction and material production together constitute a complete social production process.”¹³ Childbearing is a social affair and social behavior of significance to the sustainable development of the population, economy and society. The social benefits of childbearing and upbringing behaviors should be fully acknowledged so as to form a system of coordination among the state, society, and the family. And the protection of women’s rights and interests should be incorporated into the public framework of national laws and policies so as to realize the simultaneous development of equality of men and women in both public and private domains.

 

Third, the contemporary “almighty mother” dilemma desperately needs to be responded to and resolved. In contemporary society, women began to work outside and take part in public lives. While their personal abilities and personal values are reflected in both family and society, they are caught in a dilemma between the family and the workplace. Professor Shani Orgad had outlined, in her book Heading Home: Motherhood, Work, and the Failed Promise of Equality, the historical evolution of the image of the mother: From the 1950s to 1960s, the structural forces of society cast women into the kitchen, compelling them to abandon their careers and dreams and become “captive wives”; from 1980s to 1990s, developed countries made “a work-life balance” the focus of their policy discourses, requiring women to maintain a balance between the pursuit of a successful career and taking care of the family, hence, “Super Moms,” or the career-oriented mothers began to step into the public eye; by the turn of the century, in a culture of self-confidence and discourse of neo-liberal feminism, women med to “have the freedom of personal choice to choose everything,” however, the fierce conflicts between work and family and women’s efforts and struggles in such conflicts have been concealed.¹⁴ On the one hand, the state underlines the importance of women in economic development. On the other hand, it assigns the responsibility of childcare to mothers according to the theory of social gender differences. Such an image of an “almighty mother” is in line with the needs of national development, but it conceals the hardships and struggles of women under the double burden. In the track of evolution from freeing themselves from the bondage of the family to playing the role of “holding up half of the sky,” and from “stay-at-home mothers” to “working mothers,” women have never gotten rid of the “worries” of taking care of the family, and the caring and parenting tasks they have to undertake have not been reduced. They have turned into the “Almighty Mothers” juggling between the family and the workplace, but their physical and mental feelings as mothers and the plight of protecting their rights and interests have been ignored. Therefore, in the context of the “three-child” policy, the actual need for equality of men and women is to take active measures and methods to ease the tension between the family and the workplace for female workers, to pay attention to the physical and mental health of mothers amid the “work-family” conflict and ensure they can have a life of dignity, and to encourage men and women to share parenting responsibilities and achieve the equality of men and women in the distribution of rights and obligations in the family domain.

 

 

The research on the rights of a specific subject should not be limited to a certain type of individual rights, but focuses on a series of rights that the subject shall enjoy. Women’s rights are comprehensive, including both the general rights of women and the special protection granted to them by the state based on their identities as mothers. Therefore, women’s rights are not limited to a specific rights in the dogmatics of law, but a bundle of rights representing the various rights enjoyed by the subject based on his/her identity. This is a comprehensive content system representing a series of different types of rights. It includes the overlapping collective consensus from a holistic perspective and the respect for the multiple values of individuals. Compared with specific rights, its comprehensive and systematic orientation reflects a more comprehensive recognition and protection of human rights in the context of the new era.¹⁵

 

 

As far as women’s rights are concerned, some scholars have summarized them from the perspectives of political rights, the right to health, the right to culture and education, the right to work and employment, the right to social security, the right of the person, and the right to marriage and family.¹⁶ Some scholars hold that if the care for women’s health is divided into protection at six periods, namely, peacetime protection, menstrual protection, pregnancy protection, maternity protection, lactation protection and menopause protection, then the care for childbearing, the behavior directly enables women to have the identities of mothers, shall include pregnancy protection, maternity protection and lactation protection.¹⁷ Other scholars believe that the special protection granted to mothers by the law should include the right to maternity leave during the statutory period, the right to claim wages, allowances, medical benefits, and the right to job security (such as job adjustment and night work issues) as well as equal right to work and other aspects.¹⁸

 

Based on the above-mentioned existing research results and new issues in current social development, in the context of the three-child policy, we should pay special attention to the protection of women’s right to fertility, right to health, right to work, and right to equality in the family domain. The main considerations are as follows: First, fertility is generally the main way and initial stage for women to become mothers. It includes pregnancy, confinement, as well as a certain period of parenting. The protection of women’s right to fertility is the basis for the concrete implementation of policies to promote population reproduction. Second, fertility behavior will have a great impact and even harm on women’s physical and mental health, therefore paying attention to their right to physical health should be one of the focuses. Third, women’s rate of work participation has been increasing. Yet, due to their physiological features and the traditional family division of labor, such as caring for children and the elderly, they are put in a disadvantaged position in the job market. For example, the phenomena of “motherhood punishment” such as narrowed space for promotion and even dismissals on the grounds of pregnancy or of maternity leave.¹⁹ Such unfair treatment of women in the workplace has made the attention to and protection of women’s right to work extremely meaningful. Fourth, the protection of women’s right to equality in the family domain is also worth paying attention to. Due to the existence of a stereotyped image of social gender, women, especially women who are about to become or have become mothers, are more likely than men to take a break or quit their job and return to the family to undertake the responsibilities of housework and childcare. However, the unpaid labor of housework and family care undertaken by women who have returned to their families has been grossly undervalued in real life. One of the reasons for this problem is the difference in opportunity costs brought about by the social gender gap at work, which in turn contributes to a vicious cycle of social gender inequality, i.e., men’s and women’s differing pay and opportunities in the labor market influence the decision of a husband and wife about who shall return to the family to undertake the responsibility of family care, and this has widened work gap between men and women.²⁰ The advancement of the three-child policy has made this contradiction more prominent in real life. Implementing the three-child policy has made this contradiction even more prominent in real life.

 

 

The right to fertility is one of the basic rights of citizens. Fertility behavior is one of the important ways for women to have the identity of a mother. The subject consciousness of women as reflected in fertility mainly involves the autonomy of women’s fertility, i.e., women’s right to decide whether or not to become a mother, including a women’s decision on whether or not to have a baby, the number of children and when. From a macro perspective, the protection of the right to fertility, which is the premise of population reproduction, influences a country’s population structure, population quality and the sound development of its labor market. ²¹ From a micro perspective, the importance of the right to fertility is more reflected in the achievement of a unique view of life that fertility behavior has brought to the individuals, as well as the accompanying non-interest in it.²² Fertility brings the mental benefit of the continuation of bloodlines. An important aspect of parenthood is to witness the birth, growth, and development of a life form that carries our own genetic characteristics, and to ourselves in the process of its growth.²³ This is one of the most meaningful aspects of parenthood. However, the trouble, pain and even danger that childbearing has brought to women physically, materially and mentally should not be ignored as well. To a certain extent, childbearing is a woman’s “self-sacrifice.” Therefore, the right to fertility is of significance to the basic survival and development of individuals, behind which is human dignity and autonomy.²⁴

 

In implementing the three-child policy, the exercising of a woman’s right to fertility is subject to the influence of public opinion, cultural traditions and policy defects. On the one hand, the strongly-anchored patriarchal culture and traditional social gender culture still exert an influence in various ways and suppress women’s subjective consciousness of childbearing, which are manifested as a trial of strength between women’s reproductive freedom and national policies and other family members’ decision-making about childbearing. In the context of a public opinion environment where childbearing is encouraged by society and the state, and influenced by the old-fashioned idea of “the more sons, the more blessings” and of the continuity of a clan, Chinese women often passively accept the role of mother. On the other hand, even women who are willing to have children will choose to shun it in the face of workplace pressure and conflicts between work and childbearing. In real life, mothers often bear more responsibilities of upbringing and caring for children than fathers, and it will take some time and process to implement various national policies to encourage childbirth. As a result, the realization of the right to fertility will still meet invisible limitations and obstacles in the short term. It cannot be denied that the fertility behaviors of individuals are closely related to the population policy of the state and its economic and social development, and that the state’s appropriate adjustment of fertility based on public interests also has its legitimacy and practical necessity. Whether or not to have a baby and how many babies to have are no longer considered as only a person’s private affair and instinctive needs, but a person’s social responsibility. It’s just that such a social responsibility cannot be mandated. “The decision-making about childbearing is a natural human right that belongs to the family, and the protection of childbearing is a legal human right that the family shall enjoy, as well as a welfare responsibility that the state and the government shall assume.”²⁵ In other words, with regard to fertility behavior, encouragement measures and even rewards, instead of mandating multiple births and punishing fewer births, so that the childbearing policy can avoid repeating the mistakes of instrumental rationality and interventionism.²⁶

 

 

The right to health in the sense of the modern rule of law and rights discourse emerged in the mid-1940s, marked by the preamble of the Constitution of the World Health Organization and Article 25 of the Universal Declaration of Human Rights.²⁷ According to the definition of WHO, health is the elimination of disease or weakness and the complete health of physique, spirit and society. This definition shows that health is not limited to whether or not the physiological functions can work properly, and also includes spiritual and psychological states. It is a combination of a person’s objective physique and subjective feelings that runs through the process of the overall development of life.²⁸ As a basic right, the function system of the right to health includes the right to health equality, the right to health privacy, the right to participate in health-related procedures, and the principle of non-discrimination. The functions of its right to benefit are oriented to the right to disease prevention, treatment and control, access to essential medicines, and basic medical services such as maternal health care and reproductive health care, etc. The corresponding state obligation is to establish a basic health security system, such as providing a health protection system and health education, opening public hospitals and establishing a medical system.²⁹ Regarding women’s right to health, Article 10 of the International Covenant on Economic, Social and Cultural Rights stipulates, “Special protection should be accorded to mothers during a reasonable period before and after childbirth.” And Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter referred to as the “CEDAW”) provides that “States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on the basis of equality of men and women, access to health care services, including those related to family planning, and shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.” The international covenants on human rights pay close attention to women’s right to health, prevention, treatment and control of disease, as well as access to health facilities, goods or services and other aspects.³⁰

 

In the context of the “three-child” policy, paying attention to women’s right to health is particularly necessary. The first reason is the risk of fertility behavior itself. Reproductive health concerns a woman’s life. Whether pregnancy or childbearing itself, there are health risks for women. In particular, the “late marriage and later childbearing” policy was once advocated, but now the three-child policy has been implemented, resulting in many women are aged 35 or more when they are to have a second or third child. This age is often as a limit beyond which the probability of many adverse pregnancy outcomes increases significantly. Elderly parturient women will face more reproductive risks, such as spontaneous abortion, gestational hypertension, and chromosomal aberrations.³¹ The second reason is the psychological problems caused by postpartum depression or infant feeding.Childbearing and upbringing is a long-term and high-load process, which includes such links as pregnancy, maternity, upbringing and parenting. This process will inevitably bring a lot of mental stress to women. Mothers’ mental health problems are, to a large extent, caused by a lack of emotional communication. When such communication is absent, it is easy to breed feelings of loneliness, solitude, and even dreariness.³² And the third reason is that the health of the mother is inseparable from the health of the baby. Mother and baby are a community of shared interests and subjects of joint rights.³³ Fertility is the creation of a new life and the cultivation of this new life into a healthy labor force. Only so can it be considered as having completed the reproduction of mankind itself. Only with healthy physical conditions and in a safe environment can the probability be higher for women to bear healthy babies. Therefore, the protection of women’s right to the health needs the provision of general health services and the consideration being given to their special needs arising from their special physical and psychological features. So, we should pay close attention to women’s right to health, and establish a comprehensive maternal and child health care system and service network with multiple measures being taken in terms of caring for individuals, knowledge popularization and guidance, as well as emotional wellness counseling etc., so as to provide women with full-cycle and all-round health services.

 

 

For most people, the acquisition of survival resources and the improvement of life quality are inseparable from work. Work brings economic benefits to individuals. It is an important way for individuals to establish a network of relationships with others and integrate into society and an important means to achieve self-fulfillment.³⁴ The UN Committee on Economic, Social and Cultural Rights stated in its General Comment No. 18, “The right to work is essential for the realization of other human rights and constitutes an inviolable and inherent part of human dignity. Everyone has the right to work, which allows them to live with dignity.”³⁵ As a social and economic right that reflects the positive aspect of the right to benefit, the right to work needs to be respected and protected by the state and society. The connotation of the right to work mainly includes four aspects: The right to free choice of profession and employment, the right to fair remuneration, the right to labor protection and the right to non-discrimination.³⁶ In the field of the right to work, the corrective protection that women need mainly involves employment opportunities, career development, equal pay and treatment, maternity protection, support for women to balance work and family responsibilities, and prevention and prohibition of workplace violence and sexual harassment. Article 11 of the CEDAW expressly protects women’s right to work and requires states parties to eliminate discrimination against women in the field of employment in order to ensure, on the basis of equality of men and women, the same rights, in particular: The right to the same employment opportunities, the right to free choice of profession and employment, the right to promotion, job security and benefits and the right to receive vocational training and retraining, the right to protection of health and to safety in working conditions, to prohibit dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status. The Night Work (Women) Convention, 1990 (No. 171) of the International Labour Organization (ILO), provides that pregnant women shall be protected from night work, and women shall shift to day work within 16 weeks before and after childbirth or within the necessary period of time as required by a medical diagnosis. In the Convention on Maternity Protection for Women, 2000 (No. 183), there are provisions on maternity protection such as cash allowances and medical benefits during maternity leave. The above-mentioned provisions are of great significance to protecting women from overwork and achieving the substantive equality of men and women.

 

Due to the gradual popularization of the concept of equality of men and women and the express prohibition of discrimination against women in legal provisions, explicit employment discrimination against women has been rare in the labor market. Instead, it exists in an implicit way. In the current job market, women are already in a disadvantaged position in job hunting and subsequent career development, and have not been able to stand on the same starting line as men. The three-child policy may make the above situation “even worse” and pose greater challenges to protecting women workers’ right to work, mainly manifested in job entry and promotion. First of all, the impacts on women’s job entry. Based on social gender stereotypes, employers believe that most women’s energies are distracted by household chores such as childbearing and child-rearing. Therefore, “women are weak in terms of overall competitiveness, and they are easily marginalized to low-level, low-position, and low-paid jobs.”³⁷ Some employers are reluctant to offer jobs to women. Through the restrictive conditions against women, the entry threshold for women is raised, which has the actual effect of rejecting women’s job entry. Second, the impacts on women’s job promotion. The optimal age of childbearing for women is also a critical period for their career development. Women may miss opportunities for a job promotion because of childbearing, or they may lose the possibility of having children again because of pursuing career development.³⁸ Fertility policies in many places have strengthened the protection of women’s right to fertility: Employers are prohibited from dismissal, wage cut, or demotion of women on the ground of pregnancy, and the maternity leave and parental leave have been extended, but the extended leave has brought high labor costs and potential stress to employers, which causes the employers to tilt the balance of promotion in favor of men when they are faced with equally competitive men and women. Besides, job promotion is also related to the increase in income, the access to and the rise in political status, as well as the post-retirement security in various aspects. Of course, the negative impacts of the three-child policy on women’s employment, the potential impact mechanism, and the impact path still need to be further clarified. Yet, the grim employment landscape and the increasingly serious employment discrimination have indeed brought real pressures to women’s employment.³⁹ If these pressures are not shared by society, and there is no supporting law and policy support for them to be eased, the protection of women’s right to work will inevitably face even greater challenges. It is necessary to coordinate the interests of individuals, families, employers and the state as a whole, legally protect women’s right to equal employment without causing too many costs and burden to employers so as to achieve a balance of interests between the two.

 

 

The Paragraph 1 of Article 48 of China’s Constitution clearly lists several types of protection of women’s rights, including equal rights with men in all spheres of life, political, economic, cultural and social, and family life, and specifically underlines that the principle of equality of men and women should be observed even in the family environment. In ancient Chinese families, due to the influence of patriarchal ideology and social gender system, the husband, who owns the authority of the husband, of the father, and of the patriarch, is the elder, while the wife is the humble one, and the father has a family status much higher than that of the mother. Men have absolute control of family affairs and high family status. The modern concept of equality of men and women manifested in the family domain requires husband and wife to enjoy equal rights, assume equal obligations, love and respect each other, and live in harmony and unity. Parents have the duty to rear and educate their children, and children who have come of age have the duty to support and assist their parents. Women’s corresponding status and treatment are acquired based on that they are independent subjects of rights rather than the attachment to men’s identity. Article 5 of the CEDAW requires “States Parties to modify the social cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices based on stereotyped roles for men and women, and to ensure that family education includes the recognition of the common responsibility of men and women in the upbringing and development of their children”; Article 16 requires “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, and to ensure, on the basis of equality of men and women, the same rights and responsibilities as parents in matters relating to their children.” In other words, it is necessary to break the traditional division of labor that “men take charge of the external affairs, while women the domestic work,” equally distributing family care responsibilities and eliminating the stereotyped image of women as natural subjects of rearing and caring responsibilities so as to prevent women from becoming the executors or passive recipients of men’s decision-making.

 

In reality, based on the strongly-anchored traditional family division of labor, women are still the main undertakers of housework. The three-child policy will further exacerbate such a situation, forcing more women to return to the family and intensifying the hierarchical social gender division of labor within the family. On the one hand, in the practice of family care and child-raising, there is a serious lack of men’s roles. Patriarchy solidifies the social gender division of labor through a complete set of discourse system, and sets various standards for women by standardizing motherhood. On the other hand, women are often considered to be less contributive than men to society due to the housework they perform and thus receive less economic returns. Such recognition leads to the underestimation of the mother’s contribution to the family’s economic income, which affects her say in the family and places her in a disadvantaged position in divorce and the division of property.⁴⁰ Based on the reality that housework has not yet been socialized, it is of urgent and practical necessity to realize “parenting by both mother and father,” change the nonfeasance of men with regard to childcare, affirm the social value of housework, and ensure that women enjoy truly equal rights to decide and manage family affairs. Especially in the context of the encouragement of three-child fertility, reducing the constraints of housework on women’s development and providing guarantees for women to play their roles in the social and family domains requires a more refined system design.⁴¹ This means that family-friendly care policies should be formulated to balance the dilemma of paid work and unpaid family care responsibilities, and promote the capacity building for family development, and that traditional social gender stereotypes should be broken and diversified social gender cultures should be shaped to release the stress of women alone taking care of the family.⁴²

 

 

 

Scholars have pointed out that the modern Constitution provides two kinds of images of the human person. The first is the “universal, equal and free people,” and the other is “people who are vulnerable and in need of help.” The former, emphasizes freedom and human rights and follows the same spirit as the modern Constitution. In contrast, given new prominence, the latter emphasizes social welfare and reflects in constitutional texts the theories and practices of the modern welfare states. The two together constitute the composite image of the human person in modern constitutional texts.⁴³ Women’s identities are twofold. In addition to having the right to be endowed as a “human person” homogenous with men, they also need special protection for the self-development of “women” heterogenous with men. First of all, women are universal, equal and free people, enjoying independent legal status and the basic rights that a citizen shall enjoy as stipulated in the Constitution. Even women who take on motherhood responsibilities enjoy the same rights as men. Meanwhile, due to women’s special physiological conditions and the task of childbearing they undertake, their special interests should be given special consideration, and further, special protection by the state. Based on the composite feature of women’s identities as multiple subjects, the system of women’s rights also presents a composite form with multiple rights structures.

 

 

Generally speaking, the right to identity in the sense of modern legal norms refers to the rights of civil subjects derived from and exclusively enjoyed by them based on specific identity relationships, which take the identity interests embodied by them as objects, and are necessary to maintain such relationships.⁴⁴ In other words, it is the legal rights enjoyed by a subject based on a specific identity in a family relationship formed by marriage, birth, blood ties, legal fiction, etc. Thus, it is not rights that constitute identity, but identity attached to rights.⁴⁵ The right to identity in the modern concept of the rule of law is based on the premise of equality of personality and the establishment of human freedom and dignity. The liberation of man comes from the liberation of identity, and the protection of man comes from the protection of his personality. As to the formula of “from identity to contract” proposed by Henry J. S. Maine, the development process of it is from the establishment of unequal identity to that of equal identity, from “identity” determining “personality,” to the coexistence of “personality” and “identity” in modern society. The personal dominance relationship has been eliminated and replaced by an equal and independent ethic of identity.⁴⁶ The principle of respecting the independent personality of the subject individual should be observed to break away from the dominance of identity relationships over the person, and the modern family ethics of equality, independence of personality, and mutual respect should be employed to replace the old ethics of hierarchy, and special attention should be paid to the rights and interests of specific members in family relationships. The objectives for the protection of specific family members are also to promote mutual support of family members and harmony and stability of the family. 

 

The significance of the right to identity in the legal system lies in using different legal relationships to confirm rights, regulate the behaviors of subjects, and coordinate the intentions of subjects, so as to achieve the balance of various interests in social relations and establish a stable social order. In the broadest sense, the identity of the mother includes the legal relationship status of the subject in a certain domain, as well as the corresponding rights, obligations and responsibilities.⁴⁷ First of all, women are independent individuals, enjoying independent rights to personality. Meanwhile, people with special identities, enjoying relevant lawful rights and interests formed based on their identities. Identity is not a closed, fixed symbol of status, but a flowing, open, free choice. The modern rule of law respects and protects women’s free choice of their identity. From the perspective of regulating and protecting, it endows rights and imposes obligations on those who have this identity.

 

 

Basic rights do not necessarily have fixed connotations, but rather a relatively certain common understanding of values, which can be changed through social communication and negotiation. Due to the limited cognitive ability of human beings and the complexity and variability of real life, the structure types and specific contents of rights also need to adapt to the changes and development of society, and to put the changes of norms in the dynamic communication and changes of the real world.⁴⁸ The various rights of women have formed a normative system in which different rights with their own independent connotations are interrelated and overlap in their meanings, and their value basis eventually points to the upholding of human dignity. With the change in the public’s perceptions of marriage and family, and the impacts of the development of biotechnology on the traditional way of life, diversification has become a general trend in the domain of marriage and family, which has also brought new propositions to the protection of mothers’ rights. For example, how to implement the protection of the right to fertility for single women so that they can get the identity of mother? As surrogacy has emerged and gradually become popular, there is such a phenomenon that the “genetic mother” (egg provider), the “gestational mother” (womb provider), and the “nursing mother” (actual caregiver) of the same child are all different,⁴⁹ so how to define the identity of “mother” of these subjects and how to distinguish the rights of these “mothers”? These new phenomena have an impact on the traditional concept of motherhood, and will inevitably bring about new types of women’s rights and new forms of existing types of rights in terms of their subjects, objects, and contents. Therefore, the understanding of the concept of motherhood and the definition of women’s rights should be moderately open, so as to maintain the system’s continuous vitality and ability to respond to social changes.

 

 

The research on the system of rights should not stop at the justification of its composition and contents, but should also construct corresponding safeguard mechanisms according to the types or nature of rights. In traditional society, women are responsible for their own health, or give play to the role of family and rely on mutual assistance from family members to achieve their personal health maintenance and self-development. Only when women’s personal safety, personal dignity, and physical health are threatened or impaired by other family members or outsiders will the state laws intervene and remedy. In other words, “the state is only passively providing remedies as a means of last resort to individuals within the lowest ethical standards.”⁵⁰ Since modern times, with the development of socialized mass production and industrialization, countries have begun providing medical services to families in the form of government payment, directly issuing cash allowances for childbearing behaviors, and giving special care to families by providing socialized care services. “The most important impact of a method of human rights is to hold the government accountable.”⁵¹ For the protection of women’s rights, it is more important to analyze the ways and specific paths for the realization of their rights from the perspective of the state’s obligations and responsibilities. The state has the obligation to achieve the protection of human dignity and basic rights to the largest extent possible, and to improve the effectiveness of the protection of rights through the comprehensive application and mutual coordination of various tools by regulating and integrating various modes of action of public power. “Women’s rights, state obligations” is the application of the system of “basic rights, state obligations” in the protection of the subject’s rights.

 

 

The most primitive core function of basic rights is the right to defense, i.e., the function for citizens to confront the state’s undue interference in their freedom and rights. The state’s obligation corresponding to the function of the right to defense is the “obligation of omission” or the “negative obligation,”⁵² which requires the state to respect the rights and freedom of citizens to the greatest extent. The roles of the state here are mainly to respect the peace of individuals’ private lives, clarify the boundary between state power and individuals’ freedom, and leave individuals alone to make free choices about their personal affairs. First, with regard to fertility, more and more women assert the right to control over their own bodies and more rights to fertility autonomy. The state shall not interfere with women’s autonomous decisions on childbearing. The adjustment of the population structure should rely on positive policy guidance and incentives, rather than negative coercive measures. We should create more “freedom of choice” between childcare and employment for women, respecting women’s rights to free choice in carrying out educational activities for their children based on the family environment and practical conditions, and allowing mothers to handle educational matters within their families by themselves in the light of the circumstances.⁵³ Second, with regard to public health services, the state shall not take discriminatory measures on the ground of women’s physical and mental health and needs, deprive or limit women’s equal opportunities to receive preventive, curative and pain-relieving health services, and shall not restrict women’s access to health maintenance and to opportunities and resources for participating in decision-making in the health field. Third, with regard to employment, the state shall not take discriminatory measures against women’s career choice and career realization, or restrict their opportunities to fully participate in social activities or enter the labor market on the ground of behaviors such as pregnancy, childbearing, feeding, and fulfilling parental responsibilities. Fourth, in the family domain, the social and economic value of housework undertaken by women should not be ignored or undervalued. The division of labor between men and women should not be dealt with in a formative legal way whereupon the unequal power relations within the family are allowed. The unequal division of labor and distribution of obligations are implemented. Women are restricted from buying time and developing necessary skills for participation in even broader public decision-making.

 

 

In order to fully safeguard the realization of women’s rights, the state should take a series of measures, including material benefits, institutional guarantees, organization establishment and operation. First, material benefits: The perceptual measure of state support is whether there are corresponding policies to provide financial support to families. Women’s productive work contributes to the gross output of the national economy, just as women’s care for their children contributes to the state’s population reproduction. Direct financial support can be used to compensate women’s direct income loss caused by caring for their children, and pay mechanisms can be designed to allow working mothers to earn higher incomes and increase incentives for women’s employment. Second, institutional guarantees: The realization of any right depends on the relevant system. The legislators need to formulate laws to establish and improve such systems as the marriage system, maternity insurance system, family care leave system etc., to clarify the specific connotations of women’s rights, and further to ensure the implementation of specific rights. These systems together constitute a prerequisite for the realization of women’s rights. Third, organizational guarantees: The full realization of basic rights requires a certain organizational background. In addition to the basic structure of the “right-duty” relationship, the improvement of the organizational system, including the establishment of government departments and public health institutions that help protect women’s rights, providing corresponding facilities and professional personnel, and enhancing functional coordination between institutions, provides guarantee and auxiliary systems for the implementation of state obligations.

 

 

In a broad sense, the state’s obligation to protect citizens’ rights refers to all the state’s obligations, including the aforementioned institutional guarantees, organizational and procedural guarantees, and other obligations to removing obstacles. In a narrow sense, the state’s obligation to protect mainly refers to the obligation to protect citizens against infringements on their rights by third parties.⁵⁴ In other words, when a citizen’s rights are violated by other individual subjects, the state has the obligation to take active and effective protection measures. The fulfillment of the obligation to protect requires the state to stand on the side of women and take appropriate measures to protect their rights from being violated. To support the elderly and the young used to be the mission of the family, and relied on the self-help function of the family and the inter-generational reciprocity of family members. But in the context of the increasingly centralized contemporary families and the decline of traditional functions, society, and the state has assumed more responsibilities. When women’s right to life and health, personal liberty, and equal employment are infringed by other family members or outsiders, the state should step in and provide them with protection against the infringements on their rights by third parties, prohibit or sanction such infringements, and provide corresponding assistance to women in difficult situations, so as to protect the equal rights of family members as well as the harmonious and stable family relations. It is worth paying attention to the cases of relief for women who suffer from social gender discrimination in employment on the basis of marital status or childbearing. The judicial review criteria in such cases should be improved, the judicial relief function for women’s right to equal employment should be strengthened, and the channel for defending rights in the event of employment discrimination should be unblocked to achieve inclined protection for women workers.

 

 

The top-level design of the three-child policy is to adapt to the changing population situation and to achieve sustainable development of population, economy and society. Whether the design of the three-child policy and related supporting measures pays attention to social gender equality and the actual needs of women is closely related to the development of women’s rights and interests and the smooth realization of the policy objectives. In this context, we should continue to address the realistic difficulties in the protection of women’s rights, to improve the system design and ensure its implementation with a more rational and scientific attitude.

 

 

Corresponding with biological sex, social gender is the socially and culturally constructed group characteristic and behavior pattern belonging to men and women, respectively, which in turn shape the different social roles and status of men and women.⁵⁵ Such social identity may lead to a hierarchical relationship between men and women, placing men in an advantageous position in the distribution of power and women in a position of subordinate to them. The concept of social gender equality emphasizes that social gender awareness should run through the entire process of formulation, implementation and evaluation of social policies. Social gender perspectives should be taken in all policies to examine the different social realities, economic backgrounds and life expectations faced by men and women, and to analyze the different impacts brought by the relevant regulations upon men and women, especially the negative impacts on women. It needs to be ensured that women can directly benefit from development, that all barriers affecting women’s rights should further be removed, and that all discrimination against women should be eliminated.⁵⁶ Based on this concept, women should enjoy equal rights in terms of marriage, family, employment, and social security. Moreover, in the process of distributing and defining the above-mentioned rights, and in the entire modern structure of rule of law with the law at the core, women’s perspectives and ways of thinking should be embedded to fully respect women’s individuality and development and give real consideration to women’s special needs. From the two-child fertility policy for couples where either the husband or the wife is from a single-child family to the universal two-child policy and then to the three-child policy, relevant safeguard measures have varying degrees of social gender blindness, pay insufficient attention to women’s special social gender interests in fertility, for example, the health issues of elderly mothers, and the gender discrimination in employment against women after having a second or even a third child, etc. Therefore, in a male-dominated legislative process, it is necessary to renew the legislative concept of decision-makers, and improve their capabilities for gender analysis of laws and policies, and to examine, review and correct the deficiencies in the existing laws and regulations. It is also necessary to promote the implementation of the law from the perspective of social gender equality, and enhance the social gender sensitivity in policy application to evaluate whether laws and policies directly or indirectly have different impacts on women and to make timely and necessary adjustments accordingly, so as to avoid, reduce or even eliminate the actual unfavorable treatment of women.⁵⁷

 

 

The realization of the three-child policy involves many fields such as medical care, education, employment and social security. It puts forward higher, more specific and scientific requirements for the formulation of national laws and the design of policies so as to provide institutional and policy guarantees to balance the encouragement of childbirth and the protection of women’s rights. First, the maternal and child healthcare service system should be improved, and the supply of service should be increased to strengthen the protection of women’s right to fertility and right to health. Based on the actual needs of women of childbearing age, we should do a good job in pre-pregnancy and prenatal care, provide systematic and complete maternal and child health care services, and strive to build a new operation mechanism for the combination of prevention and treatment in maternal and child health care institutions, and establish a safe delivery rescue system for the emergency rescue of critically ill pregnant women and newborns to improve the health index of the three-child fertility.⁵⁸ Second, the legislation against employment discrimination should be improved to define the specific contents of gender equality in employment and protect women’s right to work. It should be clearly stipulated in the legislation that gender discrimination in employment on the basis of marital status and childbearing is prohibited. Such prohibitive provisions should be clarified from the definition, types, constituent elements, burden of proof, the employer’s responsibility, and relief methods for victims of employment discrimination, and a special organization should be set up to take charge of the promotion of equal employment for women and the supervision on the work of anti-employment discrimination. Thirdly, flexible institutional arrangements encouraging men to participate in childcare and share the duties of family care should be made, so as to enhance women’s status and voice in the family. Efforts at the legal level should be made for the establishment of a system of maternity and parental leave, allowing parents to take maternity leave and parental leave together, distinguishing different applicable subjects of and subdividing the categories of leave to form a scientific and enforceable family-friendly leave system by changing the traditional division of roles, so as to eliminate the phenomenon of “widow-style parenting” by mothers alone in real life and achieve the equal sharing of parenting responsibilities between men and women.

 

 

No matter how perfect the system design is, it relies on the implementation behaviors of the relevant subjects to transform the provisions on paper into specific actions and activities in real life, so as to realize the laws and policies’ regulations on social life. The Constitution, the Civil Code, the Law on the Protection of Women’s Rights and Interests, the Law on Maternal and Infant Health Care, and the Law on Population and Family Planning of China all have relevant provisions specific to women’s rights, which together constitute a system of legal norms for the protection of women’s rights. However, the provisions on rights in laws and policies do not equal the realization of rights in reality. There is still a great contrast between legal provisions and social reality, and social gender blindness in implementing public policies. In view of this, administrative organs need to formulate detailed implementation rules in accordance with the law, strengthen cooperation between relevant functional departments to form a working system in which relevant departments are linked both horizontally and vertically with cooperation and coordination,⁵⁹ and actively explore the establishment of a gender budgeting system to improve the funding mechanisms for women’s work, and implement the administrative payment responsibilities. The administrative organs also need to take specific measures and special actions for different groups of women and some prominent problems, so as to effectively promote the solving of the most realistic problems of women of their most immediate interest. Judicial guarantees are the bottom line to promote the realization of women’s rights. In the context of the increasing authority of a judicial resolution of social contradictions, more and more issues of gender equality will enter the judicial process. Precise and workable review criteria should be established so as to have results of judgment with legal, social and political effects. And the functions of individual cases such as right relief, dispute resolution and policy guidance should be given full play in eliminating gender discrimination in employment.⁶⁰ Besides, the development and publicity of an advanced gender culture should be strengthened throughout the whole of society. Although the overall public awareness of gender equality in China has constantly been improving, discrimination and prejudice against women has not disappeared, and phenomena such as derogating the image of women and solidifying women’s traditional family roles still exist. Therefore, eliminating the outdated concepts and stereotypes that hinder the development of women and creating a good social atmosphere are also necessary measures to promote the implementation of relevant laws and policies.

 

 

Influenced by the urban-rural division and the concept of social gender for a long time, urban-rural inequalities and inequalities inside and outside the system do exist in the protection of women’s rights and interests. Women in rural areas are in an even disadvantaged position in terms of protection of their rights and interests due to the double disadvantages of locality and gender. For example, the current regulations on maternity leave are mainly part of the labor protection of women workers, and quite a lot of women “engaged in atypical forms of subordinate work” are excluded. Relevant statistics show that the coverage of statutory maternity leave in rural areas is less than 20 percent.⁶¹ In rural areas, there are also defects and deficiencies in medical conditions and medical care levels, so that the protection of women’s right to physical health is weak, and the risk of pregnancy and childbearing is higher.⁶² Also, as the divorce rate rises, so does the number of single mothers. Generally, the definition of single mothers mainly includes mothers who rear and support children by themselves due to out-of-wedlock birth, divorce or widowhood. In single-parent families, children still need constant care, supervision and guidance. They are not the immediate contributors to the family economy. Instead, when the mother is the single parent, they are also the economic pillars as well as the caregivers of the family. Compared with the mainstream way of caring for children in two-parent families, single mothers need more help from the state to compensate for the lack of time and income.⁶³ Therefore, we need to pay attention to the actual difficulties of rural mothers and take measures such as improving the medical care level in rural areas, providing universal access to maternity insurance, establishing supporting facilities in rural childcare, education, etc., and promoting the equality of gender division of labor in rural areas to strengthen the attention to and protection of rural mothers.⁶⁴ Directed at the problems faced by single-parent (mother only) families, it is necessary to have a correct understanding of the social contribution and labor value of the role of the mother. We can set up special assistance projects to provide relief and allowances to single mothers so that they can “maintain a proper family and rear their children.”⁶⁵ Of course, in addition to providing financial support to single mothers on the basis of their role as child care-givers, we should also pay attention to their self-development, eliminate gender segregation and discrimination in the labor market, and improve social care services so as to help single mothers display their talents and abilities at work.

 

(Translated by ZHANG Lianying)

 

* DENG Jingqiu ( 邓静秋 ), Lecturer of Beijing Foreign Studies University Law School. Doctor of Laws.

 

1. From the perspective of social gender equality, scholars believe that the escalating conflict between work and family suffered by Chinese women is one of the main causes for the continuing slowdown of China’s fertility rate. See Ji Yingchun and Zheng Zhenzhen, “The Low Fertility Rate in China from the Perspective of Social Gender and Development”, China Social Science 8 (2018): 143.

 

2. Zhang Youyu, The Basic Rights and Duties of Citizens (Tianjin: Tianjin People’s Publishing House, 1987), 113; Zhang Qingfu and Pi Chunxie, The Basic Rights and Duties of Citizens in China (Chengdu: Sichuan People’s Publishing House, 1983), 90; Lian Xisheng and Wang Yanfei, The Essentials of the Constitution (Beijing: China University of Political Science and Law Press, 1989), 148; Zhu Feng, The Interpretations of the Constitution of the People’s Republic of China (Beijing: People’s Publishing House, 1993), 118.

 

3. Xie Libin, “The Systematic Guarantee of Constitutional Social Rights — from the Perspective of Comparison between China and Germany” Zhejiang Social Science 5 (2014): 63.

 

4. Hu Yuhong, “On the Nature of Social Rights”, Zhejiang Social Science 4 (2021): 48.

 

5. Hu Zhan, “Family Construction and the Implementation of Three-child Policy”, Collection of Women’s Studies 4 (2021): 52.

 

6. Wang Guangbin, “The Social Rights in Social Law”, Journal of China University of Political Science and Law 1 (2009): 70.

 

7. Michael J. Perry, Human Rights in the Constitutional Law of the United States, translated by Xu Shuang and Wang Bencun (Beijing: the Commercial Press, 2016), 27-35.

 

8. Wang Kai, “The Constitutional Guarantee of Marriage and Family — Centered on Article 49 of China’s Constitution”, Law Review 2 (2013): 7.

 

9. Zhang Yujie, “Legislative Language Anomie and Rhetorical Choices: Deconstruction of “Mother” in the Constitution”, Journal of Beijing Vocational College of Political Science and Law 1 (2014): 34.

 

10. Yang Dan, “Social Gender Equity: Modern Concepts of Feminist Studies”, Academic Forum 9 (2008): 21-22.

 

11. Li Guimei, “Exploration of Social Gender Ethics in the Context of the Universal Two-child Policy”, Studies in Ethics 5 (2020): 122-123.

 

12. Li Fen, New Occupational Dilemmas of Working Mothers and Countermeasures — in the Context of the Two-child Fertility Policy for Couples Where Either the Husband or the Wife Is from a Single-child Family, Journal of Southeast University (Philosophy and Social Science Edition) 4 (2015): 12.

 

13. Li Guimei, “Exploration of Social Gender Ethics in the Context of the Universal Two-child Policy”, 123.

 

14. Shani Orgad, Heading Home: Motherhood, Work, and the Failed Promise of Equality (New York: Columbia University Press, 2019), 31-61, quoted from Cao Jin and Cao Haofan, “Highly-Educated Stay-at-Home Moms and the Reconstruction of Contemporary Patriarchy in the UK: A Review of Shani Orgad’s Heading Home: Motherhood, Work and the Failed Promise of Equality”, Collection of Women Studies 3 (2021): 125.

 

15. Liu Zhiqiang, “On the Right to a Happy Life as a Human Right”, Human Rights 6 (2020): 122.

 

16. Chen Aiwu, “Review and Prospects of 70 Years of Protection of Women’s Human Rights in New China”, Science of Law 5 (2019): 61-66.

 

17. Pan Jintang, “Claiming the Right to Equal Employment for Women from Public Family Policies”, Journal of Social Science of Hunan Normal University 10 (2015): 78.

 

18. Chen Jinghui, “An Empirical Analysis of the Motherhood Protection System in the EU s”, Taipei Hwa Kang Law Journal 10 (2015): 98.

 

19. Martha Chamallas, “Past as Prologue: Old and New Feminisms”, translated by Wang Xinyu, Collection of Women’s Studies 1 (2014): 80-89.

 

20. Gillian Lester, “A Defense of Paid Family Leave,” 28 Harv. J. L. & Social Gender 1 (2005): 20.

 

21. Huang Guixia, “The Protection of Women’s Reproductive Rights and Rights to Work and Employment: Consensus and Differences”, Collection of Women’s Studies 5 (2019): 89.

 

22. Li Qian and Zhang Jianwen, “Justification of the Status of Reproductive Right as Personality Right in the Post-Civil Code-Era”, Journal of Chongqing University (Social Science Edition) 5 (2021).

 

23. J L. Hill, “What does it mean to be a parent-The Claims of Biology as the Basis for Parental Rights, New York University Law Review 2 (1991): 353-420.

 

24. Fei Xiaotong, The Institutions for Reproduction (Beijing: Qunyan Press, 2016), 13-15.

 

25. Mu Guangzong, “What Childbirth Encouragement Needs Are Fertility Benefits”, China Social Work 9 (2018): 28.

 

26. Li Guimei, “Exploration of Social Gender Ethics in the Context of the Universal Two-child Policy”, 125.

 

27. The Preamble of the Constitution of World Health Organization stipulates that, “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” And the article 25.1 of the Universal Declaration of Human Rights stipulates that, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”

 

28. Zhang Dongyang, “The Rights System of the Right to Health and Its Limitations: Comments on Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care (Draft)”, Human Rights 5 (2019): 59.

 

29. Li Guangde, “The De Jure Discussion of Health as a Right”, Law and Social Development 3 (2019): 24-33.

 

30. Liu Xiaonan, Social Gender and Human Rights Tutorial (Beijing: China University of Political Science and Law Press, 2020), 147.

 

31. Li Juan, Wu Meng and Cao Ruixin, “Risks and Opportunities for Elderly Mothers in the Context of Universal Two-child Policy”, Journal of Capital Normal University (Social Science Edition) 2 (2018): 171-172.

 

32. Lu Yi, “Reflections on the Protection of Elderly Women’s Right to Health from the Perspective of Human Rights”, Human Rights 4 (2019): 76.

 

33. He Hailan, “Contemporary Lactation Right Protection: Emergence, Structure and Realization”, Journal of East China University of Political Science and Law 2 (2018): 191.

 

34. Lu Haina, The State Protection of the Right to Equal Employment in China ― from the Perspective of International Law (Beijing: Law Press · China, 2015), 2.

 

35. Ben Soul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (vol. 1), translated by Sun Shiyan (Beijing: Law Press · China, 2019), 231.

 

36. Hu Yuhong, “On the Right to Work”, Qiushi Academic Journal 4 (2021): 104.

 

37. Wang Xigen and Zhan Hongfeng, “Women’s Right to Development and Its Legal Safeguard”, Law Science Magazine 2 (2005): 78-80.

 

38. Yang Juhua, “Reflections on the Potential Impacts upon Women’s Employment by the Two-child Fertility Policy for Couples Where Either the Husband or the Wife Is from a Single Child Family and the Countermeasures”, Collection of Women’s Studies 4 (2014): 50.

 

39. As shown in a survey of 25 provinces published by School of Sociology, Huazhong University of Science and Technology, having a child reduces a woman’s chances of employment by about 6.6 percent, and having a second child would reduce this number by another 9.3 percent.

 

40. Lu Haina, “Feminist Reflections on International Standards of the Right to Work”, Science of Law 6 (2021): 35.

 

41. Men Yanling and Zhang Xiaobao, “Connotations of Women’s Unique Roles in the Family for the New Era”, Journal of Northeast Normal University (Philosophy and Social Science Edition) 2 (2021): 107.

 

42. Li Guiyan, “Dilemmas and Paths of Men’s Participation in Family Care in the Context of the Universal Two-child Policy”, Journal of Shenzhen University (Humanities and Social Science Edition) 3 (2018): 120.

 

43. Yu Zhong, “Changes and Comparison: The Man Depicted in the Text of the Constitution”, Studies of Law and Business 5 (2009): 40-41.

 

44. Yang Lixin, The Legal Interpretation of Personal Rights (Beijing: People’s Court Publishing House, 2002), 103.

 

45. Hu Yuhong, “On the Nature of Social Rights”, Zhejiang Social Science 4 (2021): 41.

 

46. Fu Cuiying, “Recognition and Protection of the Right to Identity by the Civil Code”, Inner Mongolia Social Science 4 (2021): 89.

 

47. G. D. James, Principles of Law, translated by Guang Guisen et al. (Beijing: China Finance Press, 1990), 87-88.

 

48. Zhai Guoqiang, “The Value Foundation of Constitutional Rights”, Chinese Journal of Law 4 (2009): 195. 

 

49. Peng Chengxin, “The Realistic Legal Path for Identifying the Guardian of a Surrogate Child: An Analysis of the First Case of the Custody of a Surrogate Child in China”, Studies in Law and Business 1 (2017).

 

50. Jiang Yue and Lin Zhiqiang, “Studies of the Origins of the Various Views on the Right to Health”, Academic Forum 4 (2007): 145.

 

51. Deng Haijuan, A Research on State Obligations in the Right to Health (Beijing: Law Press · China, 2014), 34.

 

52. Zhang Xiang, “The Dual Nature of Fundamental Rights”, Legal Research 3 (2005): 25.

 

53. Deng Jingqiu, “The Constitutional Logic of the Law of the People’s Republic of China on Family Education Promotion”, Journal of Suzhou University (Educational Science Edition) 4 (2021): 67.

 

54. Zhang Xiang, “The Dual Nature of Fundamental Rights”, 28.

 

55. Tan Jing’e and Xin Chunying, English-Chinese Women and Legal Vocabulary Definitions (Beijing: China Translation and Publishing Corporation, 1995), 145 and 273.

 

56. Wang Liping, “The Culture of the Rule of Law from the Perspective of Social Gender”, Journal of Political Science and Law 3 (2015): 44.

 

57. Xia Yinlan, “The Human Rights Connotations of the Improvements in the System of Housework Compensation in Divorce in the Civil Code”, Human Rights Studies 2 (2020): 28-29.

 

58. Wang Lei and Wang Jing, “Social Gender Support Strategies for the Implementation of the Universal Two-child Policy”, Journal of Shenzhen University (Humanities and Social Science Edition) 2 (2018): 128-129.

 

59. Fan Hongxia, “Evaluation on the Principal Responsibilities of the Government in Promoting Social Gender Equality and Women’s Development”, Human Rights 3 (2019): 117.

 

60. Wang Liwan, “Reconstruction of the Benchmarks for Judicial Review of Cases of social gender Discrimination in Employment”, Collection of Women’s Studies 2 (2019): 65.

 

61. Ma Chunhua, “Perfecting the Policy of Parent Leave in China: An Effective Policy Tool Supporting Fertility”, Collection of Women’s Studies 4 (2021): 68. 

 

62. Zheng Xinrong, “For a Generation of Children to Thrive: A Few Suggestions on the Fertility Policy”, Collection of Women’s Studies 4 (2021): 73.

 

63. Shen Youjia, “Research on the Incomes and Time Impoverishment of Single Mothers”, Shandong Social Science 11 (2014): 75.

 

64. Hu Guixiang, “To Have or not to Have: Studies of the Impacts of the Three-child Policy upon Rural Women — Based on a Field Research in the Xicun Village of Hunan Province”, Journal of Guangzhou University (Social Science Edition) 1 (2022): 121-123. 

 

65. Linda Gordon. Women, the State, and Welfare (C. Madison: University of Wisconsin Press, 1990), 92-122.