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China: Investigation of Late Forced Abortion Leads to Suspension of Local Officials

(June 21, 2012) Xinhua News Agency reported on June 15, 2012, that Chinese authorities were investigating a case of an alleged forced abortion, carried out in a woman's seventh month of pregnancy at the instigation of local family planning officials. Feng Jianmei and her family, of Ankang City, Zhenping County, in Shaanxi Province, contend that earlier in June she was taken to a hospital in Zhenping where, because she did not have the money to pay a fine imposed on couples under the national family planning law for the unauthorized birth of a second child, she was forced to have an abortion. The amount of the fine is reported to have been equivalent to about US$6,300. (Jaimie Cremeans, China Investigates Alleged Forced Abortion at 7th Month of Pregnancy, PAPER CHASE NEWSBURST (June 17, 2012); David Barboza, China Suspends Family Planning Workers After Forced Abortion, THE NEW YORK TIMES (June 15, 2012).)

The investigatory team was dispatched to Zhenping by the Shaanxi Provincial Population and Family Planning Commission, the agency in charge of family planning work in the province. It has “ordered the local government to punish any officials who are found to be responsible for the forced abortion.” (Forced Abortion Case Investigated Amid Outrage, XINHUA (June 15, 2012).)

According to the central government, “while Feng did not have a legal right to have a second child, local authorities were wrong to force an abortion so late in her pregnancy … and [the] local officials should have allowed her to have the baby and then applied sanctions according to law.” (Cremeans, supra.) Three local officials have already been suspended pending the results of the investigation, and the vice mayor of Ankang has delivered an apology to Feng and her family. (Id.) The government's response is deemed unusual; it is reportedly the result of a public outcry against reports of the forced abortion, heightened by graphic photos of Feng and the remains of the fetus, posted on the Internet. (Id.; Barboza, supra.)

The central government may also be seeking to exert more vertical control over family planning administration and law enforcement, with the issuance in November last year of the Provisions on Supervision of Population and Planned Birth Administration and Law Enforcement (for Trial Implementation) (in force on December 11, 2011). (National Population and Family Planning Commission Circular on the Issuance of the “Provisions on Supervision of Population and Planned Birth Administration and Law Enforcement (for Trial Implementation)” (Nov. 11, 2011), National Population and Family Planning Commission of P.R. China website (Nov. 18, 2011).)

PRC Family Planning Law

The Law of the People's Republic of China (PRC) on Population and Planned Birth was adopted on December 29, 2001, and entered into force on September 1, 2002. (“Zhonghua Renmin Gongheguo Renkou yu Jihua Shengyu Fa” Quan Wen (Dec. 29, 2001), CHINA.COM.CN; Population and Family Planning Law of the People's Republic of China (Order of the President No.63), GOV.CN [official government web portal] (last visited June 19, 2012).) The Law states that China “maintains its current policy for reproduction, encouraging late marriage and childbearing and advocating one child per couple. Where the requirements specified by laws and regulations are met, plans for a second child, if requested, may be made.” Provincial-level people's congresses, or the standing committee of these bodies, are to formulate specific relevant measures. (Id. art. 18 ¶ 1.)

Citizens who have a child in violation of the above provision are to pay a “social maintenance fee” (governed by a separate set of measures). Should they fail to pay the fee within the specified time limit, they will be subject to an additional surcharge, to be levied counting from the date of failure to pay the fee. The family planning unit that decides on collection of such fees will apply to a people's court for enforcement of the fee collection in regard to persons who continue to fail to make the payment. (Id. art. 41.)

On the other hand, the Law stipulates that any state functionary who infringes “on a citizen's personal rights, property rights or other legitimate rights and interests,” among other listed actions, will be investigated for criminal liability or, if the act does not constitute a crime, will be given an administrative sanction and have any unlawful gains confiscated. (Id. art. 39.)

Social Maintenance Fees

The Measures for Administration of the Collection of Social Maintenance Fees,in force as of September 1, 2002, stipulate that the standard for collection of social maintenance fees (shehui fuyang fei) is based chiefly, for urban residents, on their annual per capita disposable income and for rural residents, on the annual per capita net income, in their respective localities. The actual collection amount will be determined not only on the basis of income but also on the circumstances involved in the unauthorized additional childbirth. (Measures for Administration of the Collection of Social Maintenance Fees (Aug. 2, 2002),art. 3, GOV.CN; text in Chinese, RENMIN WANG (Dec. 27, 2002).)

The Shaanxi Province planned birth regulations more specifically stipulate that a social maintenance fee may be levied on anyone who, in violation of the regulations' provisions, gives birth to an additional child. The levy is a one-time collection of three to six times the social maintenance fee, which takes as its base amount, for each spouse separately, either an urban resident's annual per capita disposable income or a rural resident's net income; if the person's actual income exceeds the base amount, an additional social maintenance fee should be collected of one to two times that figure; and the social maintenance fee that should be levied for each additional birth is a multiple of the number of each additional child born. (Shaanxi Province Population and Planned Birth Regulations (New) [in Chinese] (May 27, 2009, in force on July 1, 2009), Shaanxi Province Population and Family Planning Commission website.)