On August 20, 2021, the 30th Session of the Standing Committee of the 13th National People's Congress voted to adopt the Decision on Amending the Population and Family Planning Law of the People's Republic of China, which came into formal effect on August 20, 2021. This marks another significant amendment to the Law since its revision for the implementation of the universal two-child policy. The amended Population and Family Planning Law stipulates that the State advocates marriage and childbearing at appropriate ages, and优生优育 (excellence in childbearing and childrearing), and that a couple may have three children. Concurrently, it proposes that the State shall adopt supportive measures in areas such as finance, taxation, insurance, education, housing, and employment to reduce the family burden of childbearing, childrearing, and education.

Core Amendment: Advocating marriage and childbearing at appropriate ages, 优生优育 (excellence in childbearing and childrearing), and allowing a couple to have three children

The implementation of the three-child fertility policy is the core content of this amendment to the Family Planning Law. Article 18 of the previous Family Planning Law stipulated that the State advocates that a couple shall have two children. This amendment revises the article to: "The State advocates marriage and childbearing at appropriate ages, and 优生优育 (excellence in childbearing and childrearing). A couple may have three children."

It can be seen that this amendment changes the "advocacy" of having "two children" to "permission" to have "three children". This amendment not only means the effective transition from the universal two-child policy to the implementation of the three-child fertility policy, but also the change from "advocate" to "may" implies that citizens have the right to make more autonomous decisions regarding childbearing while fulfilling their family planning obligations.

In addition to implementing the "a couple may have three children" policy, what other important amendments are there?

I. Amendment to the Purpose of the Law

Before Amendment: Article 2 The State shall adopt comprehensive measures to control the population size and improve the population quality.

After Amendment: Article 2 The State shall adopt comprehensive measures to regulate the population size, improve the population quality, promote the achievement of an appropriate fertility level, optimize the population structure, and facilitate long-term balanced population development.

Lawyer Fang Qiqi's Comment:

The amendment to the purpose of the law reflects the State's determination in amending the law to adapt to the new situation of China's population and economic and social development, optimize the fertility policy, enhance the inclusiveness of the fertility policy, and promote long-term balanced population development.

II. Amendments to Social Security and Rewards

Before Amendment: Article 25 Couples who bear children in accordance with the provisions of laws and regulations may receive rewards for extended maternity leave or other welfare benefits.

After Amendment: Article 25 Couples who bear children in accordance with the provisions of laws and regulations may receive rewards for extended maternity leave or other welfare benefits. The State supports qualified localities in establishing parental leave for childrearing.

Lawyer Fang Qiqi's Comment: The establishment of parental leave reflects the sharing of childrearing costs by the State and employers, and also alleviates parents' anxiety about childrearing. Currently, various localities across the country have begun to introduce corresponding draft regulations. Notably, Liaoning Province has公布 (released) a draft which includes a provision encouraging employers to grant 10 days of leave per year to both spouses who have legally given birth, when their child is under 3 years old. In addition, regions such as Fujian, Guangdong, and Dalian have similar regulations, with leave generally around 10 days, which is undoubtedly an additional benefit for young parents.

III. Safeguarding the Lawful Employment Rights and Interests of Women During Childbearing Period

Before Amendment: Article 26 During pregnancy, childbirth, and breastfeeding, women shall enjoy special labor protection in accordance with relevant State regulations and may receive assistance and compensation.

After Amendment: Article 26 During pregnancy, childbirth, and breastfeeding, women shall enjoy special labor protection in accordance with relevant State regulations and may receive assistance and compensation. The State safeguards the lawful employment rights and interests of women and provides employment services for women whose employment is affected by childbearing.

Lawyer Fang Qiqi's Comment: Safeguarding women's lawful employment rights and interests is an important part of proactive fertility support policies. Prior to the amendment of the Family Planning Law, much public opinion pointed out that without supporting policies to address the issue of enterprise labor costs, the conflict between women's career development and childbearing would become increasingly severe. This amendment explicitly stipulates that the State safeguards women's lawful employment rights and interests and provides employment services for women whose employment is affected by childbearing. Furthermore, the State Council's公布 (release) of the "14th Five-Year Plan for Employment Promotion" clearly requires protecting women's rights and interests in employment and entrepreneurship, career development, skills training, labor remuneration, occupational health and safety, and providing re-employment training public services for women who have interrupted their employment due to childbearing. It regards being fertility-friendly as an important aspect of employers' social responsibility, encourages employers to formulate measures conducive to employees' work-family balance, and to negotiate and determine flexible leave and flexible working arrangements conducive to infant care in accordance with the law.

IV. Further Reducing the Family Burden of Childbearing, Childrearing, and Education

This amendment adds the following provisions to further reduce the family burden of childbearing, childrearing, and education:

Article 27 The State shall adopt supportive measures in areas such as finance, taxation, insurance, education, housing, and employment to reduce the family burden of childbearing, childrearing, and education.

Article 28 People's governments at or above the county level shall comprehensively adopt measures in planning, land, housing, finance, taxation, and talent to promote the establishment of a universal childcare service system and improve the accessibility and fairness of services for infant families.

The State encourages and guides social forces to establish childcare institutions and supports kindergartens, government agencies, enterprises, public institutions, and communities to provide childcare services.

The establishment and services of childcare institutions shall comply with relevant standards and norms for childcare services. Childcare institutions shall file for record with the health and family planning administrative department of the county-level people's government.

Article 29 Local people's governments at or above the county level shall, in the construction and renovation of urban and rural communities, build infant activity venues and supporting service facilities that are compatible with the size of the permanent population.

Public places and employers with a relatively large number of female employees shall be equipped with maternal and infant facilities to provide convenient conditions for infant care and breastfeeding.

Article 30 People's governments at or above the county level shall strengthen support and guidance for family infant care and enhance families' ability in scientific childcare.

Medical and health institutions shall, in accordance with regulations, carry out services such as vaccination and disease prevention and control for infant families, and provide health guidance on dietary nutrition and growth and development.

Lawyer Fang Qiqi's Comment: Currently, young parents face significant work pressures, resulting in strong demand for childcare, but the corresponding supply of childcare has not kept pace. This legal amendment not only promotes the standardization of the establishment of the childcare service system, requiring childcare institutions' establishment and services to comply with childcare service standards and norms and to file for record with relevant departments, but also improves the accessibility and standardization of services such as infant activity venues and supporting service facilities for infant families, requiring the construction of service facilities compatible with the size of the permanent population in the construction and renovation of urban and rural communities. It also mandates the configuration of maternal and infant facilities in public places and employers with a relatively large number of female employees. These detailed provisions help establish and improve a long-term mechanism for maternal and infant facility construction and further promote a fertility-friendly society.

V. Further Improving the Assistance System for Special Family Planning Families

Before Amendment: Article 27 Couples who have obtained the "Honorary Certificate for One-Child Parents" shall receive assistance in accordance with regulations if their only child suffers from accidental disability or death.

During the period when the State advocated that one couple should have one child, those who were entitled to receive rewards and assistance for the elderly of family planning families in accordance with regulations shall continue to enjoy such rewards and assistance.

After Amendment: Article 31 During the period when the State advocated that one couple should have one child, those who were entitled to receive rewards and assistance for the elderly of family planning families in accordance with regulations shall continue to enjoy such rewards and assistance, and shall be given necessary priority and preferential treatment in terms of elderly welfare, elderly care services, etc. Article 32 Couples who have obtained the "Honorary Certificate for One-Child Parents" shall receive assistance in accordance with regulations if their only child suffers from accidental disability or death. People's governments at or above the county level shall establish and improve an all-round support and security system covering living, elderly care, medical care, and spiritual comfort for the aforesaid persons.

Lawyer Fang Qiqi's Comment: The transformation of China's family planning policy from the universal one-child policy to the universal two-child policy and then to the implementation of the three-child policy responds to the current social situation. However, under the universal one-child policy, the elderly of family planning families who originally enjoyed benefits continue to receive relevant rewards and assistance, and this amendment further emphasizes that necessary priority and preferential treatment shall be given to the elderly of family planning families in terms of elderly welfare and elderly care services. In addition, it further clarifies that government departments need to establish and improve an all-round support and security system for parents who have lost their only child. This reflects the State's commitment to providing necessary priority and preferential treatment in elderly welfare and elderly care services and further improves the assistance system for special family planning families.

VI. Further Improving Fertility Services

Before Amendment: Article 33 Family planning technical service institutions and medical and health institutions engaged in family planning technical services shall, within their respective functions and responsibilities, carry out publicity and education on basic knowledge of population and family planning for the childbearing-age population, conduct pregnancy check-ups and follow-up services for married women of childbearing age, and undertake consultation, guidance, and technical services for family planning and reproductive health.

After Amendment: Article 37 Medical and health institutions shall carry out publicity and education on knowledge of 优生优育 (excellence in childbearing and childrearing) for the childbearing-age population, provide perinatal and maternity health care services for women of childbearing age, undertake consultation, guidance, and technical services for family planning, 优生优育 (excellence in childbearing and childrearing), and reproductive health, and standardize the diagnosis and treatment of infertility.

Lawyer Fang Qiqi's Comment: This amendment further clarifies the obligation of medical and health institutions to publicize and educate on 优生优育 (excellence in childbearing and childrearing), and family planning work has been fully integrated into the scope of health and wellness. Moreover, 优生优育 (excellence in childbearing and childrearing) has always been an integral part of policy content during the implementation of family planning. The change in the key term from "family planning" to "optimized fertility" also responds to the current social work situation.

VII. Strengthening Penalties for Improper Childcare Institutions and Personnel

Added Provision: Article 41 Where a childcare institution violates relevant standards and norms for childcare services, the health and family planning administrative department shall order it to make corrections and issue a warning; if it refuses to make corrections, it shall be fined not less than 5,000 yuan but not more than 50,000 yuan; if the circumstances are serious, it shall be ordered to stop childcare services and shall be fined not less than 50,000 yuan but not more than 100,000 yuan.

If a childcare institution commits acts of abuse against infants and young children, the directly responsible person in charge and other directly responsible personnel shall be prohibited from engaging in infant and young child care services for life; if a crime is constituted, criminal responsibility shall be pursued in accordance with the law.

Lawyer Fang Qiqi's Comment: The newly revised Family Planning Law, for the first time in the form of law, defines the management of childcare institutions (care services for infants under 3 years old) as the regulatory responsibility of health and family planning administrative departments, endows health and family planning departments with law enforcement and penalty powers, and clarifies the legal responsibilities of childcare institutions. Now, childcare institutions are no longer outside the scope of the law. It further reflects that while promoting the development of childcare, the State is also continuously improving the supervision of the childcare industry.

VIII. Deletion of Provisions on Payment of Social Maintenance Fees and Related Sanctions

Provisions in the original law regarding social maintenance fees and related sanctions that are incompatible with the three-child fertility policy have been deleted.

Lawyer Fang Qiqi's Comment: Social maintenance fees are colloquially known as "overbirth fines". The original intention of the policy was to curb overbirth through economic penalties and, at the same time, raise funds to cover the additional social upbringing burden caused by overbirth and make up for investment gaps. Article 41 of the Population and Family Planning Law before amendment stipulated that citizens who give birth to children in violation of the provisions of Article 18 of this Law shall pay social maintenance fees in accordance with the law; Article 42 stipulated that persons who pay social maintenance fees in accordance with the provisions of Article 41 of this Law, if they are State functionaries, shall also be given administrative sanctions in accordance with the law; other persons shall also be given disciplinary sanctions by their work units or organizations. This amendment abolishes restrictive measures targeting citizens' childbearing, which is not only a major highlight of this amendment but also a fundamental transformation since the implementation of the family planning policy.