UPDATE (Nov. 8, 2022): We have posted a full English translation of Prof. Liang’s request for review.
Maternity insurance [生育保险] is one of the five programs that make up China’s social insurance system. Funded by employer contributions, maternity insurance reimburses women for pregnancy- and childbirth-related medical expenses and offers them a source of income during maternity leave. In all provinces except Guangdong, however, single women have been ineligible for maternity insurance benefits. Local legislation requires claimants to provide their marriage license or some other government-issued document available only to married couples, in effect barring single women from obtaining the benefits. In a legal battle that spanned four years, Zou Xiaoqi, a single mother from Shanghai, repeatedly challenged the city’s discriminatory policy in court but ultimately to no avail. (In late 2020, Shanghai suddenly dropped the marriage requirement, but reversed course just a few months later.)
With judicial remedies unavailable, some started to explore other means to advocate for a more inclusive maternity insurance system. In May 2022, Liang Hongxia, a law professor at the Southwest University of Political Science and Law, requested the NPC Standing Committee’s Legislative Affairs Commission (LAC) to review the legality of Yunnan’s maternity-insurance legislation, which limited such benefits to married women. Prof. Liang advanced two main arguments in her request for review (which she kindly shared with us and we have translated below). She first argued that the Yunnan legislation unlawfully prevented single women from acquiring maternity insurance when national legislation does not distinguish between married and single women on this issue. In addition, she cited the Chinese leadership’s recent relaxation of the country’s once-draconian family planning policy, including the repeal of penalties for above-quota births and the decoupling of birth registration from a child’s access to social welfare benefits. “The current overall approach to China’s family planning policy,” she observed, “is to promote childbirths and increase birthrate.” The policy basis for denying single women access to maternity benefits as a way to limit childbirths,[*] therefore, “no longer exists.” Prof. Liang went on to make the case that some single Chinese women have a “strong desire” to have kids and are “fully capable” of shouldering parenting obligations by themselves. In concluding, she wrote:
Ensuring maternity insurance benefits for single women . . . not only provides a kind of financial support for single women and children born out of wedlock, but is even more a symbol of equal status—it best embodies the State and society’s commitment to the human rights ideals of inclusivity, openness, and diversity.
Recently, the LAC informed Prof. Liang that it substantially agreed with her arguments and had requested Yunnan to abolish the marriage requirement. As reported by the Legal Daily on September 20, the LAC concluded that local restrictions on single women’s access to maternity insurance no longer conformed to the Party’s decision to “optimize the birth policy” and related national reforms and were inconsistent with “the spirit of the relevant constitutional and statutory provisions.” Liang Ying, director of the LAC’s Office for Recording and Reviewing Regulations, further added that broadening the coverage of maternity insurance would “help create a more harmonious and friendlier social environment,” consistent with the Party’s decisions and the Core Socialist Values.
The same day, the Legal Daily also revealed that the LAC had launched a wider legislative clean-up campaign not limited to Yunnan. The agency directed the relevant State Council departments and all provincial legislatures to remove any “improper restrictions” on women’s access to maternity insurance now found in official documents. It has also asked those rulemaking bodies to provide an update on their progress by November 15.
With these actions, the LAC’s years-long effort to rein in restrictive local family planning legislation continues. It has conducted review of such legislation every year since 2017, either on its own initiative or prompted by citizen requests. In 2017 and 2019, it rejected local legislation that required employers to fire, respectively, private-sector and public-sector employees who exceed the birth limit. In 2021, it ruled against localities that authorized family planning officials to mandate parentage testing for individuals suspected of having above-quota births. In the past two years, the LAC also twice directed other rulemaking bodies to update their family planning legislation and other official documents in light of new national law and policy, such as the August 2021 amendment to the Population and Family Planning Law [人口与计划生育法] that codified the three-child policy and eliminated fines for violations.
Prof. Liang’s application is translated in full below. At her request, we are not making the original Chinese version publicly available at this time. Except for a few paragraph breaks, all our edits are indicated in the translation. All footnotes and hyperlinks were added by us. Prof. Liang is not responsible for any of our edits or mistakes.
Application for Legality Review of Articles 16 and 24 of the Yunnan Provincial Regulations on Population and Family Planning
Office for Recording and Reviewing Regulations of the Legislative Affairs Commission of the NPC Standing Committee:
Article 16 of the Yunnan Provincial Regulations on Population and Family Planning [云南省人口与计划生育条例][1] provides:
Where a couple gives birth to a child, before the child is born or within one year thereafter, they are to apply for birth registration and obtain a Childbirth Service Certificate at the township (town) people’s government, subdistrict office, or qualified villagers’ (residents’) committee at one spouse’s place of household registration or current residence.
Article 24 [of the Regulations] provides [in part]:
[Relatedly,] article 25 of the Yunnan Provincial Measures on Maternity Insurance for Employees [云南省职工生育保险办法] provides [in part]:The female employees of organs, enterprises or public institutions, social groups, and other organizations that participate in maternity insurance, enjoy maternity insurance benefits in accordance with provisions of the State; the unemployed spouses of male employees enjoy benefits for childbirth medical expenses in accordance with provisions of the State. . . .
To apply for maternity insurance benefits, the following materials shall be provided:
(1) a certification issued by the population and family planning department that the birth is within limit [referring to the Childbirth Service Certificate];
(2) the employee’s identity document;
(3) relevant medical certificate issued by a medical institution;
(4) where an insured male employee applies for benefits, his marriage certificate and his spouse’s unemployment certificate shall be provided at the same time.
Based on the foregoing, only married women may enjoy maternity insurance benefits; unmarried single women cannot apply for Childbirth Service Certificates and therefore cannot access maternity insurance. We believe that single women should also be entitled to maternity insurance benefits and that the relevant provisions of the Yunnan Provincial Regulations on Population and Family Planning have improperly reduced single women’s rights and interests, are inconsistent with the equal protection principle and with the spirit of the relevant provisions in superior legislation, and should therefore be amended. More detailed reasons are as follows.
I. China’s Relevant Laws Do Not Restrict Single Women’s Right to Obtain Maternity Insurance
Of China’s Labor Law [劳动法], Social Insurance Law [社会保险法], and Women’s Rights and Interests Protection Law [妇女权益保障法], none ties maternity insurance to marriage or explicitly disqualifies single women from obtaining maternity insurance.
(1) Article 73 of the Labor Law provides: “Laborers enjoy social insurance benefits according to law in one of the following circumstances: . . . (5) giving birth.” The entities protected by the Labor Law are “laborers who have formed labor relationships with [employers].”[2] Single women who are laborers are qualifying entities subject to Labor Law protection, and should enjoy social insurance benefits when they give births.
(2) Article 53 of the Social Insurance Law provides: “Employees shall participate in maternity insurance, and maternity insurance premiums are to be paid by employers rather than employees.” Article 54 provides [in part]: “Where an employer has paid maternity insurance premiums, its employees are to enjoy maternity insurance benefits . . . .”[3] In other words, under the Social Insurance Law, as long as an employee has signed a labor contract, or formed a de facto labor relationship, with an employer, the latter must pay maternity insurance [premiums] for her whether she is married or not. Thus, under the principle of reciprocity of rights and obligations, single women who have paid maternity insurance premiums should enjoy maternity insurance benefits when giving births.
(3) Article 28 of the Women’s Rights and Interests Protection Law provides: “The State develops social insurance, social assistance, social welfare, and healthcare undertakings, ensuring that women enjoy rights and interests such as in social insurance, social assistance, social welfare, and healthcare.” Article 29 provides: “The State promotes a maternity insurance system, and establishes and completes other safeguard systems related to childbirths.”[4] These provisions do not clearly provide that single women are any different when it comes to the enjoyment of rights and interests such as social insurance.
Article 72 of the Legislation Law [立法法] provides that “the people’s congress of a province . . . and its standing committee may formulate local regulations, provided that they do not contravene the Constitution, laws, or administrative regulations.” Under article 16 of the Yunnan Provincial Regulations on Population and Family Planning, only married women may obtain a childbirth certificate, and the provisions of article 24 also imply that only married female employees or the unemployed spouses of male employees may enjoy maternity insurance benefits. By making marriage a precondition for applying for maternity insurance, both articles improperly restrict the rights of single women to acquire maternity insurance without any basis in superior legislation. They are therefore unlawful.
II. [The Restriction] Is Inconsistent with China’s Current Population Development Policy
Since the start of the 21st century, China’s demographic situation has undergone important transformational changes. Based on the trend of China’s population development, the Party Central Committee has made major decisions and arrangements on adjusting the family planning policy at the level of national strategy. The current overall approach to China’s family planning policy is to promote childbirths and increase birthrate.
The Fifth Plenum of the 19th Party Central Committee called for “optimizing the birth policy and increasing its inclusiveness.” In its coverage of this new policy, People.cn also pointed out that, in the face of new situations and new problems that come with the changing trend in birthrate and the evolution of marriage and family, it is necessary to build forward-looking institutions, and that in future institutional design [we] must “solidify and strengthen the fundamental status of maternity insurance in the maternity security system and gradually realize the full coverage of maternity insurance.”
On June 6, 2021, the Party Central Committee and the State Council adopted the Decision on Optimizing the Birth Policy and Promoting Long-Term and Balanced Population Development [关于优化生育政策 促进人口长期均衡发展的决定], stating:
Adopt a people-centered approach. We must meet the people’s expectations, actively and prudently advance the optimization of the birth policy, promote the coordination and fairness of the birth policy, satisfy the people’s diverse childbearing needs, consider marriage, childbirth, parenting, and education together to effectively address the people’s concerns, unleash childbirth potential, and promote family harmony and happiness.
That Decision also required the repeal of restrictive measures, such as social upbring fees, that were once enforced, as well as the clean-up and repeal of relevant penalty provisions. This means that China would abolish all penalties for unlawful or above-quota births, signaling the promotion of childbirths.
The main goals of the Program for the Development of Chinese Women (2021–2030) [中国妇女发展纲要（2021–2030年）] include: “1. Women enjoy equal rights and interests in social security, and the level of security continues to improve. 2. Improve the maternity security system. Increase the coverage rate of maternity insurance.” To these ends, the Program puts forward these corresponding strategies and measures: “Improve the maternity security system that covers urban and rural women. Solidify and increase the coverage rate of maternity insurance, and improve the payment of childbirth medical expenses by maternity insurance and policies on maternity allowances.” This provision emphasizes the State’s comprehensive protection for maternity from the perspective of equal protection for women’s rights and interests.
Thereafter, the December 9, 2021 Guiding Opinion of the General Office of the National Health Commission on Improving the Birth Registration System [国家卫生健康委办公厅关于完善生育登记制度的指导意见] further provides in item 2 of article 3 (titled “improving and strengthening the relevant services”):
Make it easier for the people to take care of affairs. In combination with the implementation of the three-child birth policy, improve the procedures for handling matters and strengthen publicity and explanation of the policy to make it easier for the people to take care of maternity insurance and other matters. Adhere to the principle of streamlining administration for the convenience of the people, and actively coordinate with the relevant departments to promote the decoupling of the handling of related matters from birth registration.
This provision shows that while in the past, birth registration was linked to matters such as admissions to daycares or schools to control unlawful births, its function has now changed and mainly serves to dynamically monitor the people’s childbirths and service needs. As a result, even if a single mother cannot register her childbirth, the child’s future schooling and life will not thereby be affected. [That provision thus] offers a strong reference for [allowing] single women to further enjoy maternity insurance, as the main function of maternity insurance is to safeguard childbearing women—and is not accompanied by [any role] in controlling illegal births.
III. Some Provinces in China Have Opened Up the Maternity Insurance System to Single Women
On the issue of maternity insurance for single women, due to the attendant birth-control function of maternity insurance, Chinese localities have generally not allowed single women to access maternity insurance. But there has been a loosening recently: some provinces have adjusted their maternity insurance policies in some manner, and some single women have successfully applied for maternity insurance.
[The right to] maternity insurance is by its nature a social right, for it requires payment by the State, is a subsidiary concept of the right to social insurance, and primarily serves the insurance function of providing financial compensation and health coverage based on childbirths. But at the same time maternity insurance is a powerful measure to achieve China’s birth policy, with the accompanying function of promoting or controlling childbirths. In the past, China’s family planning policy was aimed at strict birth control, and because the number of births could not be accurately controlled [if] single women [were allowed to] have children,[5] denying them access to maternity insurance thus became a powerful measure to enforce the national family planning policy.
As the country’s overall birth policy changes, however, the policy basis for the birth-control function that accompanies the denial of maternity insurance to single women no longer exists. Therefore, single women as ones who may bear children should be protected by law. The function of maternity insurance should accordingly be adjusted to safeguard childbirths and reduce the financial burden of childbearing, with the attendant effect of facilitating childbirths by those covered by maternity insurance. Some provinces in China have tried to amend their rules on maternity insurance for single women to be in line with national policy, as explained in detailed below.
Guangdong Province was the first region where single women received maternity insurance. Previously, the biggest obstacle for single women in Guangdong applying for maternity insurance was their inability to provide birth registrations, because birth registration required a marriage certificate. After the State implemented the two-child policy, Guangdong grasped the policy’s spirit and in 2016 promulgated the Interim Administrative Measures of the Guangdong Provincial Health and Family Planning Commission on Birth Registrations and Approval of Additional Births [广东省卫生和计划生育委员会关于生育登记和再生育审批的暂行管理办法]. Article 8 provided [in part]: “Those giving births to a first or a second child without having registered their marriage may apply for birth registrations in accordance with the provisions of these Measures.” In 2021, the Measures were revised as the Administrative Measures of the Guangdong Provincial Health Commission on Birth Registrations and Approval of Additional Births [广东省卫生健康委员会关于生育登记和再生育审批的管理办法],[6] which have retained former article 8’s provisions. Under this article, single women in Guangdong may successfully apply for birth registrations—hence maternity insurance as well—without a marriage certificate.
In Shanghai, several single women have so far successfully applied for maternity insurance payments as well. For instance, Zhang Meng (an alias),[7] an unmarried mother, was denied maternity benefits in 2017 for not having a marriage certificate. In the four years that followed, she kept on bringing suit and, despite repeated losses, never stopped advocating for her legitimate rights and interests. In December 2021, the Shanghai Municipal Civil Affairs Bureau issued [a notice] aimed at delinking maternity insurance from an applicant’s marital status and no longer requiring “married” as a precondition for obtaining maternity insurance benefits, thereby safeguarding single women’s rights to enjoy maternity insurance. After the notice’s issuance, Zhang Meng successfully obtained maternity benefits in March 2021. She was in fact not alone: more and more single women are seeking judicial remedies to protect their rights to and interests in maternity insurance.
IV. China’s Single Women Have Childbearing Needs and Can Shoulder Parenting Obligations
As the society develops, some women choose to stay single for various reasons, and the number of single women in China grows every year. And because a relatively large percentage of single women wish to have children, guaranteeing that they do can effectively raise China’s birthrate. Our seventh population census [conducted in late 2020] showed that China’s total fertility rate was only 1.3, far below the replacement rate of 2.1. At present, some of the single women have a strong desire to have children. As Liang Jianzhang and Ren Zeping et al. predicted in their 2022 Report on the Cost of Childrearing in China [中国生育成本报告], “safeguarding the reproductive rights of single women” could raise China’s birthrate by about 2%. Today’s extremely low birthrate requires us to completely abandon the mindset resulting from the population policy during the prior period of high birthrate. Therefore, whether to safeguard single women’s rights and interests or to promote the national birth policy, Chinese legislation should allow single women to have children and afford them the right to maternity insurance.
Many women in China have now achieved financial independence and can bear the financial responsibility of raising children themselves even without relying on a partner. In addition, as the principle of equality between men and women is publicized and implemented, Chinese women have generally obtained a good education, with many of them holding important positions and having a certain level of social status. They are fully capable of raising children and providing them with a healthy environment at home. Ensuring maternity insurance benefits for single women, therefore, is not only a kind of financial support for single women and children born out of wedlock, but is even more a symbol of equal status—it best embodies the State and society’s commitment to the human rights ideals of inclusivity, openness, and diversity. Rather than encourage births out of wedlock, we believe that the women who are able and willing to independently raise children should enjoy the rights and benefits of childbearing equally.
For the foregoing reasons, local legislation in China should actively adapt to the policy spirit of family-planning reform and development and should, in the spirit of reform and innovation, follow the trend and change with the times, and use rule-of-law thinking to explore the systems and mechanisms for implementing the basic state policy of family planning under new circumstances. Localities should amend the provisions that tie women’s access to maternity insurance to marriage and, with an inclusive and open attitude, give single women the right to enjoy maternity insurance benefits in light of the new birth policy.
Therefore, we request a legality review of the provisions in the Yunnan Provincial Regulations on Population and Family Planning that disqualify single women from maternity insurance. We hope you would handle the request carefully and provide timely feedback.
Applicant: Liang Hongxia
May 1, 2022
[*] Because China’s family planning policies have always regulated the number of permissible birth(s) per married couple, officials cannot readily apply the rules to unmarried women. And allowing single women to have children would, in officials’ view, also create other enforcement problems. For instance, they would similarly find it difficult (if not legally impossible) to apply the birth quota to a single mother who later marries or to the father of a child born out of wedlock who then marries (or is already married to) another woman. For these reasons, authorities sought to deter single women from having children by denying them maternity benefits.
[1] Adopted at the 29th session of the Standing Committee of the 9th Yunnan Provincial People’s Congress on July 25, 2002; as amended in 2022. [This information was originally included in the body text.]
[2] Labor Law art. 2, para. 1.
[3] Omission in original.
[4] After the 2022 revision to the Women’s Rights and Interests Protection Law, these two provisions now read in relevant part:
Article 50: The State is to develop social security affairs, ensuring that women enjoy rights and interests such as in social insurance, social assistance, and social welfare. . . .
Article 51: The State is to implement a maternity insurance system and establish and complete childcare services and other safeguard systems related to childbirths. . . .
[5] See supra note *.
[6] These 2021 Measures were repealed and replaced by the Administrative Measures of the Guangdong Provincial Health Commission on Birth Registrations [广东省卫生健康委生育登记管理办法], effective May 1, 2022. The 2022 Measures also do not require a marriage certificate for birth registration (see art. 9).
[7] Zhang Meng’s real name later revealed to be Zou Xiaoqi, whose story we mentioned earlier in this post.
Look forward to seeing Prof. Liang‘s request for review.
It’s been posted!