Friday, May 11, 2007

Divorce and the one child policy

We have been covering divorce and child custody in my Women in American Law class. The students have been very interested in the topic, since there has been much recent reporting about the growth in China’s divorce rate over the last several years (see, for example, here and here and even here).

I’ve been curious about how divorce and remarriage (or death of a spouse and remarriage) affects the one family, one child policy, so took the opportunity to ask my students. They were not in complete agreement about what the law is, but the consensus seemed to be as follows: If a person has a child and then divorces and remarries, he or she can have another child so long as the person they are marrying does not have any children. But if the new spouse also has a child, then there cannot be a child of that new marriage.

I was a little amused as the students hashed out what the law actually was, because they relied on the same sorts of things my students at home frequently rely on – anecdotes and television! One student said she thought a person could have another child even if the new spouse had a child already, because her brother had a child and had recently married a woman with a child, and the family’s understanding was that they could have another child (I did not ask her how it is she came to have a brother!). Another said it must be allowed, because there is a popular television show where a widow with one child marries a widower with one child, and then they have another child together (it seems the Brady Bunch, China style, just has 3 kids!). Well, then, if it’s on TV, it must be true, right?! But when it’s state-controlled TV, maybe it is . . . .


Stephie said...

Out of curiousity, have you ever really "seen" the one child law? If no one really knows what it is, I wonder if it really exists on paper! Do you know why your students in your class seem to have different outlooks on the law? One very confused girl here. Your post today just made me wonder how something so demanding as a 1 child policy could be interpretted in so many ways.

Also, not to change the subject (ok I did, sorry), but have you ever found out what that bug was on your baclcony back in April? Maybe the students know....I am still totally curious about that, too :)

malinda said...

LOL! You have a lot of faith in lawyers and law students, Stephie! Lawyers rarely know all the laws that are on the books -- we just like to think we can figure out what general area of law applies to a problem and then look up the law. And law students won't know unless they've studied that area of the law.

And law might not be all that specific, and it requires interpretation. Suppose the law says something like "A family can only have one child." Well, is a new marriage a new family? Who decides? In China, it's likely that the law is interpreted differently by each family planning office in each province. So that's how there can be uncertainty.