China’s former one-child policy was “one of the most draconian examples of government social engineering ever seen.”[1] The policy was formally launched nationwide in 1980. In just a few years, however, central authorities decided to “open small holes” by allowing more couples to have a second child, after encountering difficulties in enforcing a uniform birth-control policy nationwide and a backlash against abusive enforcement measures, such as forced sterilizations.[2]
The provinces were tasked with implementing that partial relaxation of the one-child policy. All provincial legislatures (except those of Xinjiang and Tibet) had adopted provincial birth-control legislation by the early 1990s.[3] (Xinjiang eventually did so in 2002; Tibet still has not acted.) Such legislation translates the policy into concrete terms, specifying, among other things, exceptions to the one-child-per-couple rule[4] and the penalties for above-quota births. Couples who exceed birth limits would face not only hefty fines called “social upbringing fees” [社会抚养费], but also discipline at work—including mandatory termination in a number of provinces.
Confronted with a shrinking labor force and an aging population, the Chinese government began the process to end the one-child policy in 2013.[5] First, couples were allowed to have two children if one parent is an only child. Then the policy formally ended on January 1, 2016, when an amendment to the Population and Family Planning Law [人口与计划生育法] codifying a replacement two-child policy took effect. Provincial legislatures soon followed suit by updating their local legislation.
Even after that major shift in birth-control policy, mandatory terminations of employment remained on the books in a few provinces. Two groups of citizens thus separately challenged those provisions—first as applied to private-sector employees in 2017, then as applied to public-sector employees in 2019—using the NPC Standing Committee’s (NPCSC’s) recording-and-review process. Their arguments prompted strong pushback from some of the provinces, but they ended up persuading the NPCSC Legislative Affairs Commission (LAC). The provinces repealed their provisions as a result. We recount these and other recent developments in Chinese family-planning law and policy below.
Challenge to Private-Sector Mandatory-Firing Provisions
In May 2017, four labor law scholars submitted the first request for review, challenging provisions in seven provincial regulations that required private employers to fire employees who violate birth limits.[6] They argued that those provisions (1) violated the Labor Contracts Law [劳动合同法] by allowing—indeed, requiring—private employers to fire employees for a reason not allowed by that Law; and (2) were inconsistent with the shift in national family-planning policy.[7]
After receiving the LAC’s requests for response, Liaoning and Guizhou voluntarily agreed to amend their regulations, but the other five provinces resisted the change. Hainan did not rebut the scholars’ arguments, but cited its above-national-average birthrate to justify keeping the penalty. Fujian (rightly) countered that its regulations required the firing of employees only when their violations are “serious” (hence the penalty was not mandatory). Guangdong emphasized that its mandatory-firing provision applied only to “people within the system”—including employees of wholly or partly state-owned enterprises—even though many of them are protected by the Labor Contracts Law. Yunnan and Jiangxi also voiced disagreement with the scholars.
Guangdong went further in pressuring the LAC to rule in its favor. It contended that after decades of enforcement, mandatory firings had become a “societal consensus.” Were the LAC to now deem the practice unlawful, it would breed discontent among those who had lost their jobs for flouting birth restrictions. They would likely seek to reopen their cases, thereby “provoking social conflicts and affecting social stability.” Guangdong thus warned the LAC to “cautiously consider” the issue at hand “on the principle of respecting history and furthering stability.”
After consulting with labor, family-planning, and other relevant authorities, the LAC concluded that the legal issue involving the Labor Contracts Law was a close one. One the one hand, it acknowledged that the Law allows employers to unilaterally fire an employee in only six scenarios—and the latter’s violation of birth-control law is not one of them. One the other land, the LAC recognized that the Population and Family Planning Law (PFPL) may lend some support to the provinces’ position. The PFPL (enacted in 2002) subjects employees who exceed birth quotas to “disciplinary sanctions” [纪律处分]. This term nowadays primarily refers to the Communist Party’s internal punishments of its own members. There is no consensus on its meaning as used in the PFPL, and the LAC recognized that it could be capacious enough to include terminations of employment.
In the end, the LAC sided with the scholars. But it did not tackle the thorny statutory issue, perhaps mindful of the chaos that Guangdong warned could be unleashed by declaring a long-standing harsh penalty unlawful. Instead, it adopted the scholars’ policy-based argument. Though the provinces’ “relatively strict control measures” had helped slow population growth in the 20th century, the LAC wrote, more recently China has seen a “major turning point” in demography and the Party had adopted “balanced population development” as a “national strategy”—quoting from a series of high-level population policy documents from 2015 and 2016. The LAC thus concluded: the provincial mandatory-firing provisions applicable to private-sector employees no longer comported with the direction of national family-planning policy and should be repealed.
By September 2018, all seven provinces had amended their regulations by borrowing the PFPL’s language (which subjects rule-breaking employees to “disciplinary sanctions”). Today, only Shaanxi expressly requires private employers to fire employees who violate birth-control law, but only if their transgressions are “serious,” including having two or more above-quota births.
Challenge to Public-Sector Mandatory-Firing Provisions
What about the parallel mandatory-firing provisions for public-sector employees? One of the four scholars who requested review in 2017 revealed in an interview that they had made the strategic choice of not challenging those provisions. National disciplinary rules for the employees of administrative organs and public institutions (e.g., public schools), he explained, expressly require the dismissals of employees with “serious” violations of birth quotas. “Were we to include [those public-sector employees] within the scope of our request, the difficulty and resistance would be greater and [the request for review] less viable.”
By 2019, however, the relevant central agencies and the provinces had reached a consensus that mandatory firings and other harsh penalties for birth-quota violations should be discontinued. Thus, after the LAC in October 2019 had received a new citizen request challenging the public-sector mandatory-firing provisions of Ningxia, Guangxi, and Hubei, all three provinces willingly amended their regulations.[8]
As of this writing, only Shanxi, Zhejiang, Hunan, and Shaanxi still expressly allow—though not require—the dismissals of public-sector employees for exceeding birth quotas.[9] All other provinces have adopted the PFPL’s language, under which state employees with above-quota births are subject to “administrative sanctions according to law.”
More “Inclusive” Reproductive Policies
Yet administrative sanctions include dismissals, which under national disciplinary rules are still a permissible penalty for state employees who break birth-control rules. Those who want more children than allowed, therefore, still risk losing their livelihoods, despite the two rounds of provincial regulatory changes discussed earlier. A couple from Guangdong learned this the hard way. Both lost their public-sector jobs (the husband had been a police officer and the wife a public school teacher) after giving birth to a third child in January 2019. Their employers cited the national disciplinary rules, even though Guangdong had repealed its mandatory-firing provision in 2018. (The couple were also ordered to pay RMB 153,000 (~$24,000) in social upbringing fees.)
Last fall, the Communist Party’s proposals for the 14th Five-Year Plan called for “increasing the inclusiveness of reproductive policies” [增强生育政策包容性]. According to a government researcher, this would mean giving families and women greater freedom to make reproductive decisions and eliminating the barriers to having more children. With this latest policy support, the LAC recommended that the national disciplinary rules for state employees be amended to discontinue dismissal as a punishment for exceeding birth quotas. It also directed the provinces to conduct a comprehensive review of all local family-planning rules, to stop enforcing “overly harsh penalties” that no longer “fit the realities,” and to eventually amend those rules. Finally, according to a January 2021 report, the LAC would “at the appropriate time” propose amendments to the PFPL’s provisions on the two-child policy, social upbringing fees, and disciplinary measures against rule-breaking employees. As the Politburo decided on May 31 to adopt a three-child policy, those amendments could be submitted to the NPCSC as soon as its upcoming session on June 7–10.
Reactions to the Politburo’s decision so far have been lukewarm, however. Couples of child-rearing age are reluctant to have more (or for some, any) children because of high costs of living and lack of job protections for women. Experts fear that the new policy would be unlikely to change China’s demographic trends and urge the authorities to scrap the birth limits altogether. But the Chinese Constitution, adopted in 1982, could be an unexpected obstacle to eliminating all birth controls.
Article 25 of the Constitution affirms the state policy of “promoting birth planning [计划生育] so that population growth fits the plans for economic and social development.” The drafters likely used the term “birth planning” to mean the then-nascent one-child policy, and that term is indeed synonymous with some form of birth quota in common parlance. Yet as one legal scholar argues, the constitutional text itself has no such limitation: “birth planning” as used in Article 25 could mean a range of reproductive polices—whether to slow, simply not meddle with, or even encourage childbirths—as long as they fit China’s socioeconomic conditions.
Perhaps recognizing this considerable room for interpretation, the LAC reportedly also recommended that the NPCSC interpret the birth-planning provisions to supply a firm constitutional basis for the Party’s promise of more inclusive reproductive policies.
[1] Wang Feng et al., Population, Policy, and Politics: How Will History Judge China’s One-Child Policy?, 38 Population & Dev. Rev. (Supplement) 115, 116, 121 (2012).
[2] Gu Baochang et al., China’s Local and National Fertility Policies at the End of the Twentieth Century, 33 Population & Dev. Rev. 129, 131 (2007).
[3] See id.
[4] See id. at 132–136 (categorizing provincial exceptions for a second child that existed at the end of the 1990s).
[5] See Wang Feng et al., Commentary, The End of China’s One-Child Policy, 47 Stud. Fam. Plan. 83, 83–85 (2016).
[6] This section is based on the LAC’s official account of its review in response to the scholars’ request. See Off. for Recording & Reviewing Reguls., NPC Standing Comm. Legis. Aff. Comm’n [全国人大常委会法制工作委员会法规备案审查室], Selected Cases of Recording and Reviewing Normative Documents [规范性文件备案审查案例选编] 47–51 (2020) [hereinafter Selected Cases]. An abbreviated version of that account is available in this October 2017 report by The Paper.
[7] The scholars also argued that the mandatory-firing provisions (1) “implemented birth-control policy by interfering with labor relations,” which constituted a “misuse of legal measures”; and (2) went against the special protections for female employees under national legislation. Id. at 47. But the LAC seemed to have treated these arguments as subsidiary and did not respond to them in its official account of the process. See id. at 49–50.
[8] For a fuller account of the LAC’s review of these provisions, see Selected Cases, supra note 6, at 17–19.
[9] Zhejiang and Hunan are in the process of repealing their mandatory-firing provisions.
Comments & Pingbacks