China Employment Law Update - December 2015

By Ying Wang, Pattie Walsh, Susan de Silva, Hamish Fraser


China: the End of the One-Child Policy

The one-child policy, which forms part of the family planning policy, was first introduced into China in 1978 and implemented as a measure on 18 September 1980 to curb the then-increasing population. After a strict 35-year birth control policy, in October 2015, the Fifth Plenum of the 18th Central Committee of CPC ruled that all couples could have two children. On 27 December 2015, the Standing Committee of the National People's Congress passed an amendment (the "Amendment") to the Law of the People's Republic of China on Population and Family Planning, which will give effect to the nationwide two-child policy from 1 January 2016.

The Amendment, which is centred around the two-child policy, encourages all couples to have two children, cancels relative allowances for one-child families, terminates late-marriage and late-delivery vacations, and ends compulsory contraception.

Nationwide Two-Child Policy

Paragraph 1, Article 18 of the Law of the People's Republic of China on Population and Family Planning, which previously advocated for "a couple to give birth to one child" has been revised to allow couples to "give birth to two children". A further change in Article 18 permits couples to ask for another delivery, in accordance with law and regulations.

It is expected that the changes to the family planning policy will help to solve China's problem of an ageing population and also help to drive the country's economy in the future. According to Mr. Wang Pei'an, Deputy Head of the National Health and Family Planning Commission, the change in policy is expected to result in over 30 million more people in work by 2050 and decrease the elderly population by 2%.

Cancellation of Late-Marriage and Late-Delivery Vacations

The Amendment no longer encourages late-marriage and late-delivery, with its cancellation of respective allowances. According to Mr. Zhang Chunsheng, Director of the Law Department of the National Health and Family Planning Committee, the law does not advocate for late marriage and late child-bearing because pregnancy in later years could affect maternal health and the safety of delivery. However, the Amendment does stipulate that a couple, in accordance with relevant regulations, can receive an extended delivery vacation as a benefit, which means that couples with one, two, three or more children can receive respective subsidies, provided that they are in accordance with the newly revised law. The Amendment does not specify the form of the benefit, which has been left for local legislatures to determine during implementation.

The cancellation of late-marriage and late-delivery allowances, together with the replacement of compulsory contraception with contraception by sole discretion will affect the regulations of some companies, requiring them to update relevant articles about late-marriage and late-delivery benefits for compliance with the Amendment.

Termination of One-Child Allowances

According to the Amendment, couples who give birth to a child after 1 January 2016 will not receive Honorary License for One-Child Parents. However, couples who give birth to a child before 1 January 2016 will still be awarded the license and will also be able to claim relevant local subsidies. In Shanghai, for example, the current monthly subsidy (until the child reaches 16 years old) for a one-child couple is 30 RMB. Despite the fact the Amendment is removing the license to couples after 1 January 2016, the license still carries significance as receipt of it determines whether a couple will qualify for local subsidies.

Cancellation of Compulsory Contraception

The Amendment has led to a change in the controversial term of "compulsory contraception" in Article 20, which has been replaced with "contraception by sole discretion". The change will require Chinese employers to amend internal regulations that may previously have set out punishment guidelines for accidental second pregnancies.

The newly revised Law on Population and Family Planning is a relaxation on the previous law, which reflects several issues in contemporary China; firstly, the increasingly severe problem of an aging population, which was partly caused by the strict family planning policy in place over the past four decades; secondly, the government's increasing concern for maternal health and acknowledgment of China's growth in society, economy, and population; and finally, the recognition for the need to remove compulsory contraception and make legislative influence on birth control far more reasonable.