From 1980 to 2021, China imposed some form of enforceable birth quota on most of its population. A one-child policy had been implemented until late 2013, when it was partially relaxed so that couples may have two children if one parent was an only child. Then in 2016, the modified one-child policy was replaced by a two-child policy, which was in turn superseded by a three-child policy in May 2021. Although a formal birth quota remains after the latest policy change, a statutory amendment in August eliminated all the penalties that once attached to violations of the quota, such as hefty fines and terminations of employment. In effect, couples who exceed the three-child limit will not be penalized, though they will be ineligible for benefits such as extended maternity leave.
In the early 2000s, to facilitate enforcement of the birth limit, at least six provinces enacted legislation to provide family planning authorities with a potent investigative tool. While the exact wording differed from province to province, such legislation essentially authorized family planning officials to mandate parentage testing [亲子鉴定] (or “technical evaluations” [技术鉴定], as most provinces termed the procedure) for individuals who were suspected of having one or more above-quota births but denied having done so. Guizhou’s (art. 70) and Chongqing’s (arts. 24, 47) legislation further imposed fines between RMB 10,000 and 50,000 if the parties refused to submit to testing.
In June 2021, an unnamed citizen requested that the NPC Standing Committee (NPCSC) review the legality of the compulsory-testing provisions of (what appears to be) Chongqing. This was not the first time that restrictive local birth-control restrictions were challenged through the NPCSC’s recording-and-review process. In 2017 and 2019, citizens obtained favorable decisions from the NPCSC Legislative Affairs Commission (the agency performing review in practice) that local legislation may not require employers—whether private-sector or public-sector—to fire employees for having above-quota births.
In a new report submitted to the NPCSC this week, the Legislative Affairs Commission (LAC) concluded that compulsory-testing provisions likes Chongqing’s were also invalid. The LAC tersely explained its decision as follows:
After review, we are of the view that the parent-child relationship implicates the personal dignity, identity, and privacy of citizens as well as the harmony and stability of families; [they] are the basic rights and interests of citizens and are protected by the Constitution and laws. It is inappropriate for local regulations to provide for contents on compulsory parentage-testing, nor should they lay down corresponding administrative penalties, sanctions, or handling measures. After communications, the enacting organ [i.e., the Chongqing legislature] has amended the relevant provisions.
我们审查认为，亲子关系涉及公民人格尊严、身份、隐私和家庭关系和谐稳定，属于公民基本权益，受宪法法律保护，地方性法规不宜规定强制性亲子鉴定的内容，也不应对此设定相应的行政处罚、处分、处理措施。经沟通，制定机关已对相关规定作出修改。
It is hard to tell the exact nature of the LAC’s decision from these two sentences alone. The agency’s internal written opinion, as seen by several Chinese legal scholars and as reported by the Southern Metropolis, appears to rest on several grounds. First, the LAC cited the Communist Party’s decision to “optimize birth policy,” suggesting that compulsory parentage testing and the attendant fines for noncompliance were inconsistent with that policy shift.
Second, the LAC in its internal opinion relied on the following constitutional provisions to conclude that local legislation violated the “relevant principles and sprits of the Constitution and laws” by “rashly setting forth the administrative investigative measure of compulsory parentage testing without any such provision in upper-level legislation [such as a national law].”
Article 33, paragraph 3: The State respects and safeguards human rights.
Article 38: The personal dignity of citizens of the People’s Republic of China is inviolable. . . .
Article 49: Marriage, families, mothers, and children are protected by the State. . . .
The LAC was also quoted as stating: “unless voluntarily requested by citizens or mandated by a national law, public authority should not subject citizens to compulsory parentage testing, thereby interfering with parent-child relationships.” It thus seems to be the LAC’s view that the Constitution bars local legislation, but not national laws, from requiring parentage testing as a way to enforce the birth quota.
How the LAC arrived at that conclusion is unclear; the Southern Metropolis article did not further quote from the LAC’s analysis (if there was indeed any). Wang Xixin, a constitutional law scholar at Peking University and a member of the LAC’s Experts Committee on Recording and Review, disagreed with the national-local duality. He argued in an interview that compulsory parentage testing, if prohibited by the constitutional provisions cited above, would be off limits to all forms of legislation.
Finally, the LAC concluded that because the parentage-testing mandate itself was invalid, so too were the accompanying fines for refusing testing under the principles of administrative law.
In accordance with the LAC’s decision, Guizhou, Chongqing, and Hunan have in the past few months repealed their compulsory-testing provisions; Hubei already did so in 2019. Yunnan’s (art. 36) and Guangxi’s (art. 37) provisions still remain on the books, but likely not for long.
While it is hard to quarrel with the LAC’s ultimate conclusion in this case from a rights-protection perspective, its account of the case in this week’s report includes so few information that it is difficult to tell the exact rationale for its conclusion. Even with the several reported quotes from its written opinion, it is still unclear if the outcome in this case ultimately depended on the Constitution, and if so, how the LAC has analyzed the constitutional provisions at issue. We hope the agency will disclose more of its reasoning, so that it does not yet again miss another opportunity for more transparency and further development of Chinese constitutional law.
Great post! Many thanks.