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China: Two-Child Policy and Law

(Nov. 5, 2015) On October 29, 2015, the official Xinhua News Agency of the People’s Republic of China (PRC) released the Communique of the Fifth Plenary Session of the Communist Party of China (CPC) 18th Central Committee. According to the Communique, China will end its decades-long “one child policy,” and all married couples will be allowed to have two children. (Zhongguo Gongchandang Di Shiba Jie Zhongyang Weiyuanhui Di Wu Ci Quanti Huiyi Gongbao, XINHUANET (Oct. 29, 2015); Highlights of China’s CPC Key Meeting Communique, XINHUANET (Oct. 29, 2015).)

The “two-child policy” is not to be implemented immediately. (China Denies Immediate Validity of Two-Child Policy, XINHUANET (Nov. 2, 2015).) “A final plan for the policy change will be ratified by the annual session of China’s top legislature in March,” according to Xinhua. (Id.) At that time, the national Population and Family Planning Law may be revised to incorporate the policy, and provincial population and family planning regulations will also need to be revised accordingly.

Currently, the “one-child policy” is written in the nationally applicable Population and Family Planning Law and the specific measures implementing the policy are provided in provincial regulations.  The Population and Family Planning Law first entered into effect nationwide on September 1, 2002, and has never been revised since then. (Population and Family Planning Law of the People’s Republic of China (Order of the President No.63) (promulgated by the Standing Committee of the National People’s Congress (NPC) on Dec. 29, 2001, effective on Sept. 1, 2002), Central People’s Government website.) According to the Law, the State “advocates” that every couple have only one child, but a second child may be allowed “where the requirements specified by laws and regulations are met.” (Id. art. 18.) Specific measures implementing the provision, such as eligibility criteria for having a second child, are formulated at the subnational level by the people’s congresses of the provinces, autonomous regions, and municipalities directly under the Central Government. (Id.)

The constitutional provision on the family planning policy may remain unchanged. Article 25 of the PRC Constitution states, “[t]he State promotes family planning so that population growth may fit the plans for economic and social development.” (Constitution of the People’s Republic of China (1982, as last amended Mar. 14, 2004), art. 25, NPC website.) The Communique, in announcing the policy change, stressed that the “basic state policy of family planning is to be adhered to.” (Communique, supra.)

Previously, in November 2013, a policy change that allowed more married couples to have a second child was announced. As it was not in conflict with the Population and Family Planning Law, the 2013 policy change did not result in a revision of the Law. Most autonomous regions and municipalities directly under the Central Government revised their family planning regulations or otherwise adopted the 2013 policy change in 2014. (Laney Zhang, Where to Find China’s Provincial Family Planning Regulations, IN CUSTODIA LEGIS (Oct. 29, 2015).)