Translated by China Aid Association
Editors note: Last week, a group of eminent academics and scholars issued an open letter to the National People’s Congress, China’s legislature, urging them to revise China’s law on family planning. Their move was prompted by the recent spate of news reports of late-term abortions forcibly performed on mothers whose pregnancies were not approved as required by China’s family planning policy. Those reports ignited condemnation both worldwide and within China. The letter is below:
A Citizens’ Proposal to Begin as Soon as Possible a Complete Revision of the “Population and Family Planning Law of the People’s Republic of China”
Standing Committee of the National People’s Congress (Law Committee):
The Chinese Constitution of 1978 and 1982 instituted Family Planning as a fundamental state policy; it was a product of the special circumstances of Chinese society at the time. Prior to 2001, China had no clear, specific and standardized family planning law. It was not until the 2002 “Population and Family Planning Law” was enacted that this policy really had a “legal basis.” However, there are still many problems in the formulation and execution of this law, some of which are even quite serious. In some places, the legislation violates the Constitution and the letter or the spirit of the law; in a few other places, human rights violations and administrative illegalities still exist.
A few years ago, the media reported on “China’s First Family Planning Case” in Changli, Hebei province; recently there was the “Ankang, Shaanxi Province Case of Feng Jianmei’s Forced Induced Labor.” These and other similar cases have aroused widespread concern throughout society. In fact, the “story behind the story” of these incidents has also made conspicuous the limitations and legislative defects of our current “Population and Family Planning Law.” In keeping with the inclusion of human rights into the Constitution in 2004 and a widespread growing awareness among the citizenry of human rights; and based in particular on the need to harmonize China’s population with sustainable socio-economic development; and out of respect for the objective principle of how things develop; and in order to truly reflect being “people-oriented” and putting the people’s comprehensive development at the core, we hereby propose that the Standing Committee of the National People’s Congress begin the important work of comprehensively revising the “Population and Family Planning Law” as soon as possible.
First, the current “Population and Family Planning Law” emphasizes controlling the population. With that as the basis, the birth examination and approval system that has been put into place is not only inconsistent with the protection of human rights provisions in our nation’s Constitution, but are also in conflict with the relevant clauses of the Administrative Licensing Law. The constitutional amendment of 2004 that confirms that “the State respects and safeguards human rights” provides a clear constitutional basis for the protection of reproductive rights. The universality, morality and importance of reproductive rights all reflect its meaning and value as a basic human right. Each of these is interpreted in the international covenants on human rights and our laws at all levels. Article 13 of our Administrative Licensing Law stipulates that administrative licenses do not have to be or are not required to be arranged for anyone that is a citizen, legal person or other organization that can make his/her/its own decisions. Reproductive rights reflect the predominant status of individuals and families. Therefore, acknowledgment of reproductive rights as a basic human right and repeal of the current reproductive approval system not only reflect the fundamental spirit in our Constitution of respecting human rights, but also are in line with our current Administrative Licensing Law.
Second, the rules for delegating authority in Article 18 of the “Population and Family Planning Law” have limitations. The law gives to the provincial, autonomous region and municipal people’s congresses or people’s congress standing committees the authority to stipulate the specific regulations for having a second child or more children. In actuality, the specific regulations with regard to late marriage and childbearing, the number of births and the spacing of births all differ significantly from place to place; and this has in reality resulted in inequality in reproductive rights stemming from one’s household registration, status and region. Moreover, policies made by some localities seriously deviate from the principles and the spirit of the Constitution and the legal code and violate citizens’ reproductive rights. We believe the rules for delegating authority are too broad, and that this is one of the root causes of the unfair implementation of the current reproductive policy. Therefore, we propose abolishing the rules for delegating authority in the current “Population and Family Planning Law” that are related to restricting the number of births, and focus instead on the protection of citizens’ reproductive rights and reproductive health rights.
Third, Article 41of the current “Population and Family Planning Law”—“Citizens who give birth to babies not in compliance with the provisions of Article 18 of this Law shall pay a social maintenance fee prescribed by law”—is unreasonable, lacks legitimacy and contradicts the basic nature of reproductive rights as a human right. As stated earlier, reproductive rights is a basic human right, reflecting respect for and protection of citizens’ autonomy and the rights of the family, which shall not be restricted by any person or government. Without doubt, the collection of social maintenance fees is an unjustified restriction on citizens’ reproductive rights, impeding citizens from exercising those rights. Eliminating or abolishing the social maintenance fee not only shows [that we are] protecting reproductive rights as a fundamental human right, but would also avoid unfairness and inequality in the implementation of the current social maintenance fee system.
Fourth, Article 42 of the current “Population and Family Planning Law”— “Where the person who should pay the social maintenance fees in accordance with the provisions prescribed in Article 41 of this Law is a state functionary, he shall, in addition, be given an administrative sanction in accordance with law; with regard to a person other than the state functionary, a disciplinary measure shall, in addition, be taken against him by the unit or organization where he belongs”—is a serious violation of the legitimate rights and interests of a citizen. To use violation of birth control as a reason to punish a state employee with an administrative sanction or others with a disciplinary measure not only violates citizen’s reproductive rights, but also the proportionality principle as well as the prohibitions in the public law against improper linkages. Hence, we recommend this provision be repealed.
Fifth, an appropriate population and family planning policy may have positive implications for the interests of society as a whole. However, a “Population and Family Planning Law” that is intended to control population numbers, coupled with relevant [local] provisions in the “Population and Family Planning Regulations” throughout the country, not only violate the principle and the spirit of our Constitution and legal code, but also fail to meet the need for sustainable socio-economic development. We believe that, on the premise of fully respecting citizens’ reproductive rights and family rights, and by making the guarantee of citizens’ right to reproductive health the core, formulating a mechanism oriented toward benefits that will guide citizens to freely and also responsibly bear children, should be the fundamental spirit for revising the current “Population and Family Planning Law”. This requires putting emphasis on the government’s service functions, banning forced abortion, and prohibiting any infringement of citizens’ rights and freedom in the name of family planning.
Sixth, the Standing Committee of the National People’s Congress should establish a review mechanism to investigate the legitimacy of local “Population and Family Planning Regulations.” This would be a rigorous investigation of relevant provisions of local “Population and Family Planning Regulations” that violate the principle and the legislative purpose of the Constitution, “Legislation Law” and “Population and Family Planning Law”, as well as providing appropriate solutions so as to truly embody the Constitution’s fundamental law principle and goal of protecting human rights.
We believe that revising the “Population and Family Planning Law” is imperative. This is not only necessary for the building of a society where laws prevail and for the protection of human rights, but is also urgently required so as to reduce the illegalities and unfairness of the current administrative management of family planning. We propose that the current “Population and Family Planning Law” be revised and perfected as soon as possible, that citizens’ reproductive rights be truly respected and protected, and that the historic transformation of the family planning policy be smoothly carried out.
Initiators of the Proposal:
Zhan Zhongyue, Beijing University, Law School Professor; Doctor of Law
Li Jianxin, Beijing University Sociology, Department Professor; Doctor of Demography
Liang Jianzhang, Chairman of Ctrip; Doctor of Economics
Hong Xiuping, Principle of Hangzhou Gateway Language School
Huang Wenzheng, Senior Financial Strategist with a company in Beijing, Doctor of Statistics
Consenting Scholars co-signing the proposal:
Jiang Mingan, Beijing University, Law School Professor
- Wang Guisong, People’s University of China, Law School Associate Professor; Doctor of Law
Zhang Xiang, People’s University of China, Law School Associate Professor; Doctor of Law
- Wang Jianxun, University of Political Science and Law of China, Law School Associate Professor; Doctor of Law
Chen Zheng, Beijing Normal University, Law School Associate Professor; Doctor of Law
- Wang Feng, Tsinghua University, Public Administration School Professor; Demographer
Yu Fengzheng, Beijing Normal University, Zhuhai Campus Law School Professor
- Yuan Gang, Peking University, School of Government Professor
Liang Zhongtang, Professor of Shanghai Academy of Social Sciences; former Expert Member of the State Family Planning Commission
Xu Jianming, Professor of Shanghai Number One School of Finance and Economics