On August 20, 2021, the 30th meeting of the Standing Committee of the 13th National People's Congress voted to pass the decision to amend the Population and Family Planning Law of the People's Republic of China, which officially took effect on August 20, 2021. This is another major amendment to this law since the comprehensive two-child policy was implemented and the population and family planning law was amended. After this amendment, the population and family planning law stipulates that the state advocates timely marriage and childbearing, and excellent birth and upbringing, and a couple can have three children. At the same time, it proposes that the state will adopt support measures in terms of finance, taxation, insurance, education, housing, and employment to reduce the burden on families for childbirth, upbringing, and education.

Core Amendment: Advocate timely marriage and childbearing, and excellent birth and upbringing, a couple can have three children

Implementing the three-child birth policy is the core content of this amendment to the population and family planning law. The previous Article 18 of the population and family planning law stipulated that the state advocates that a couple gives birth to two children. This amendment changes it to: "The state advocates timely marriage and childbearing, and excellent birth and upbringing. A couple may give birth to three children."

It can be seen that this amendment changes "advocating" to have "two children" to "may have" "three children." This amendment not only means the effective transition from the comprehensive two-child policy to the implementation of the three-child birth policy, but the change from "advocating" to "may" also means that citizens have the right to more independently decide on having children while fulfilling their family planning obligations.

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

I. Amendment to the Purpose of Law Revision

Before amendment: Article 2 The state adopts comprehensive measures to control the population size and improve the population quality.

After amendment: Article 2 The state adopts comprehensive measures to regulate the population size, improve the population quality, promote the achievement of an appropriate fertility level, optimize the population structure, and promote long-term balanced population development.

Comment by Attorney Fang Qiqi:

The amendment to the purpose of law revision reflects the state's determination to adapt to the new situation of population and economic and social development, optimize the birth policy, enhance the inclusiveness of the birth policy, and promote long-term balanced population development.

II. Amendment to Social Security and Rewards

Before amendment: Article 25 A couple who gives birth to children in accordance with laws and regulations may receive rewards for extended maternity leave or other welfare benefits.

After amendment: Article 25 A couple who gives birth to children in accordance with laws and regulations may receive rewards for extended maternity leave or other welfare benefits. The state supports places with conditions to establish parental leave.

Comment by Attorney Fang Qiqi:The establishment of parental leave reflects the sharing of parenting costs by the state and employers, and also alleviates parents' parenting anxiety. At present, various regions across the country have begun to introduce corresponding draft regulations one after another. Among them, the draft regulations published by Liaoning Province have attracted much attention, which include encouraging employers to give couples who have given birth according to law 10 days of leave per year when their children are under 3 years old. In addition, regions such as Fujian, Guangdong, and Dalian have similar relevant regulations, with leave generally around 10 days, which is undoubtedly another benefit for young parents.

III. Protect the Legitimate Employment Rights and Interests of Women During Childbearing Period

Before amendment: Article 26 Women during pregnancy, childbirth, and breastfeeding shall enjoy special labor protection in accordance with relevant state regulations and may receive assistance and compensation.

After amendment: Article 26 Women during pregnancy, childbirth, and breastfeeding shall enjoy special labor protection in accordance with relevant state regulations and may receive assistance and compensation. The state ensures women's legitimate rights and interests in employment and provides employment services for women whose employment is affected by childbirth.

Comment by Attorney Fang Qiqi:Protecting women's legitimate rights and interests in employment is an important part of active birth support policies. Before the amendment to the population and family planning law, many public opinions pointed out that if supporting policies are not adopted to solve the problem of employers' employment costs, the conflict between women's career development and childbearing will become increasingly serious. This amendment explicitly stipulates that the state ensures women's legitimate rights and interests in employment and provides employment services for women whose employment is affected by childbirth. In addition, the "14th Five-Year" Employment Promotion Plan published by the State Council also explicitly requires protecting women's rights and interests in employment and entrepreneurship, career development, skills training, labor remuneration, occupational health and safety, etc., and providing public employment training services for women whose employment is interrupted due to childbirth. Taking a birth-friendly approach is an important aspect of enterprises assuming social responsibilities, encouraging employers to formulate measures conducive to balancing work and family relationships for employees, and determining through consultation flexible leave and flexible working methods that are conducive to caring for infants.

IV. Further Reduce the Burden on Families for Childbirth, Upbringing, and Education

This law revision newly added the following provisions, further reducing the burden on families for childbirth, upbringing, and education:

Article 27 The state adopts support measures in terms of finance, taxation, insurance, education, housing, and employment to reduce the burden on families for childbirth, upbringing, and education.

Article 28 The people's governments at or above the county level shall comprehensively adopt measures such as planning, land, housing, finance, and talent to promote the establishment of a universal childcare service system and improve the accessibility and fairness of services for families with infants.

The state encourages and guides social forces to establish childcare institutions, and supports kindergartens, government agencies, enterprises, and 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 with the health authorities of the county-level people's government.

Article 29 The 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 commensurate with the size of the permanent population.

Public places and employers with relatively more female employees shall be equipped with nursing facilities to provide convenient conditions for infant care and breastfeeding.

Article 30 The people's governments at or above the county level shall strengthen support and guidance for families in infant care and enhance families' scientific parenting abilities.

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

Comment by Attorney Fang Qiqi:Currently, young parents face many work pressures, leading to strong demand for childcare services, but the corresponding childcare supply has not kept up. This amendment to the law not only promotes the standardization of the establishment of the childcare service system, requiring that the establishment and services of childcare institutions comply with childcare service standards and norms, but also requires filing with relevant departments. In addition, it also improves the accessibility and standardization of services such as infant activity venues and supporting service facilities for families with infants, requiring the construction of service facilities commensurate with the size of the permanent population in the construction and renovation of urban and rural communities. Equipping public places and employers with relatively more female employees with nursing facilities. These detailed provisions help establish and improve a long-term mechanism for the construction of nursing facilities and further promote a birth-friendly society.

V. Further Improve the Assistance System for Special Families Under Family Planning

Before amendment: Article 27 Couples who obtain the "Honorary Certificate for One-Child Parents" shall receive assistance in accordance with regulations if their only child suffers accidental injury or death.

During the period when the state advocated that a couple gives birth to one child, those who should enjoy rewards and assistance for elderly family planning families in accordance with regulations shall continue to enjoy relevant rewards and assistance.

After amendment: Article 31 During the period when the state advocated that a couple gives birth to one child, those who should enjoy rewards and assistance for elderly family planning families in accordance with regulations shall continue to enjoy relevant rewards and assistance, and shall be given necessary priority and care in terms of elderly welfare and elderly care services. Article 32 Couples who obtain the "Honorary Certificate for One-Child Parents" shall receive assistance in accordance with regulations if their only child suffers accidental injury or death. The people's governments at or above the county level shall establish and improve a comprehensive assistance and guarantee system covering life, elderly care, medical care, and spiritual comfort for the above-mentioned groups.

Comment by Attorney Fang Qiqi:The transition of China's family planning from the universal one-child policy to the comprehensive two-child policy and then to the implementation of the three-child policy is a response to the current social situation. However, during the universal one-child policy, the elderly in original family planning families continue to enjoy relevant rewards and assistance, and this amendment further emphasizes that elderly welfare and elderly care services for elderly family planning families must be given necessary priority and care. In addition, it further clarifies that government departments need to establish and improve a comprehensive assistance and guarantee system for parents who have lost their only child. It reflects that the state shall give necessary priority and care in terms of elderly welfare and elderly care services, and also further improves the assistance system for special families under family planning.

VI. Further Improve Fertility Services

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

After amendment: Article 37 Medical and health institutions shall carry out publicity and education on eugenics and excellent birth and upbringing knowledge for people of childbearing age, provide perinatal and maternity healthcare services for women of childbearing age, undertake consultation, guidance and technical services for family planning, eugenics and excellent birth and upbringing, and reproductive health, and standardize the diagnosis and treatment of infertility.

Comment by Attorney Fang Qiqi:This amendment also further clarifies the obligations of medical and health institutions for publicity and education on eugenics and excellent birth and upbringing, and family planning work has been overall incorporated into the scope of health. Moreover, during the implementation of family planning, eugenics and excellent birth and upbringing have always been an integral part of the policy content. The change of keywords from family planning to optimized birth also responds to the current social work situation.

VII. Strengthen Penalties for Non-compliant Childcare Institutions and Personnel

Newly added provision:Article 41 If a childcare institution violates relevant standards and norms for childcare services, the health authority shall order correction and give a warning; if it refuses to correct, it shall be fined between 5,000 yuan and 50,000 yuan; if the circumstances are serious, it shall order cessation of childcare services and be fined between 50,000 yuan and 100,000 yuan.

If a childcare institution abuses infants, its directly responsible supervisors and other directly responsible personnel shall be permanently prohibited from engaging in infant care services; if a crime is constituted, criminal liability shall be pursued in accordance with the law.

Comment by Attorney Fang Qiqi:The newly revised population and family planning law for the first time, in the form of law, determines the regulatory responsibilities of health administrative departments for childcare institutions (care services for infants under 3 years old), grants law enforcement and penalty authority to health administrative departments, and clarifies the legal responsibilities of childcare institutions. Now childcare institutions are no longer outside the law. It also reflects that while promoting the development of childcare, the state is also continuously improving the supervision of the childcare industry.

VIII. Delete Provisions on Social Support Fees and Related Disciplinary Actions

Provisions on social support fees and related disciplinary actions that are inconsistent with the three-child birth policy in the original regulations have been deleted.

Comment by Attorney Fang Qiqi:Social support fees are popularly called "extra-birth fines" among the public. The original purpose of the policy was to curb extra births through economic penalties while raising corresponding funds for the increased social support burden caused by extra births and making up for the investment gap. The original Article 41 of the population and family planning law before amendment stipulated that citizens who give birth to children not in accordance with Article 18 of this law shall pay social support fees in accordance with the law; Article 42 stipulated that personnel who pay social support fees in accordance with Article 41 of this law, if they are state functionaries, shall also be given administrative disciplinary actions in accordance with the law; other personnel shall also be given disciplinary actions by their employers or organizations.This amendment abolishes restrictive measures against citizens' birth, which is not only a major highlight of this amendment but also a fundamental transformation since the implementation of the family planning policy.