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China: Two Child Policy Becomes Law

(Jan. 8, 2016) On December 27, 2015, the Standing Committee of China’s National People’s Congress (NPC) adopted a decision amending the Population and Family Planning Law. Effective January 1, 2016, the “two child policy” became law applicable nationwide. (Zhonghua Renmin Gongheguo Renkou yu Jihua Shengyu Fa [People’s Republic of China Population and Family Planning Law] (2015 Law) (promulgated by the NPC Standing Committee on Dec. 29, 2001, effective Sept. 1, 2002, as amended Dec. 27, 2015, effective Jan. 1, 2016), Central People’s Government website.)

Previously, on September 29, 2015, the Fifth Plenary Session of the Communist Party of China (CPC) 18th Central Committee announced that China would end its decades-long “one child policy,” allowing all married couples to have two children. (Laney Zhang, China: Two Child Policy and Law, GLOBAL LEGAL MONITOR (Nov. 5, 2015).) This is the first time the Population and Family Planning Law was revised since its promulgation in 2001. Under article 18 of the old Law, the state advocated that every married couple have only one child; a second child might be allowed only when the requirements specified by laws and regulations were met. (Population and Family Planning Law of the People’s Republic of China (Order of the President No. 63) (2001 Law) (promulgated by the NPC Standing Committee on Dec. 29, 2001, effective Sept. 1, 2002), art. 18 § 1, Central People’s Government website.)

The new article 18 in the 2015 Law provides that the state advocates that every married couple have two children and that more children may be allowed where the requirements specified by laws and regulations are met. (2015 Law, art. 18 §§ 1 & 2.) The 2015 Law authorizes the provincial-level people’s congresses to formulate implementing measures, to address such issues as who is eligible to have more than two children. (2015 Law, art. 18 § 2.)

In response to the possibility that a husband and a wife may come from different localities and therefore be subject to different local regulations, the new Law added that in such a situation, the couple may choose which regulations will apply. (2015 Law, art. 18 § 4.)

In addition, in the 2015 Law, late marriage and late childbearing are no longer encouraged; the wording in article 18 that the state “encourages late marriage and late childbearing” was removed.  Couples used to be rewarded with extended leave or other benefits for late marriage or late childbearing pursuant to the old article 25.  The new article 25, however, provides that all couples who bear children in compliance with laws and regulations may be granted extended leave or other benefits. (2001 Law & 2015 Law, arts. 18 & 25.)

Under a new birth registration system, couples who bear no more than two children will no longer be required to obtain birth permits from government authorities. This was announced in a decision issued by the CPC Central Committee and the State Council on December 31, 2015. (Zhonggong Zhongyang, Guowuyuan Guanyu Shishi Quanmian Lianghai Zhengce, Gaige Wanshan Jihua Shengyu Fuwu Guanli de Jueding [Decision of the CPC Central Committee and the State Council on Overall Implementation of the Two-Child Policy and Reforming and Improving Administration of Family Planning Services] (Dec. 31, 2015), XINHUANET (Jan. 5, 2016).)