China: The one child law is gone, but not the fines for breaking it
The central government asks for "no restrictions" to registration of citizens, but 13 million people live without documents and without access to public services. Greed of bureaucrats to blame, who have built up extortion system around family planning that nobody wants to do without. Lawyers critical: "A massive failure for the law."
Beijing (AsiaNews) - Seven-year-old Miao Miao has grown up invisible in her own country.
The second child of her family, her birth broke family planning rules that used to limit most families in China's cities to one baby. Youngsters in those cases are deprived of hukou, a government "household registration" document that allows people to receive public services, such as schooling and health care.
Even after the Communist Party declared an end to the one-child policy in October, families who broke the rules before the change still need to pay a hefty fine to register their children for hukou.
The fine, which the government calls a "social maintenance fee," is stout: three to six times a household's annual per capita income. The government has updated the name of the fee through the years. First it was called the "extra birth fee" when it was introduced in the 1980s. In 1994, the name was changed to the "unplanned birth fee." The current terminology was adopted in 2001.
The fine is so onerous that most families chose to never register their second children. A national census in 2010 showed that China had at least 13 million people without a hukou, like Miao Miao.
For a short while, families with unregistered children hoped things were changing for the better when on January 14 the State Council ordered local governments to register everyone.
The cabinet said that registering for a hukou is "a basic right of citizens" and said local governments are prohibited from imposing any conditions that would prevent households from registering.
But that actually changed very little. A proposed amendment to the Population and Family Planning Law that was released in December retained the fine for families who are "not in compliance with the law."
Yang Wenzhuang, a deputy-director at the National Health and Family Planning Commission, said during a State Council news conference on January 11 that the rules cannot just be dropped. The fine, as he put it, cannot be "flipped like a pancake."
The government should keep fine money that was collected before the one-child policy was abandoned, he said, and governments should continue to punish households in which more than the allowed number of children are born. (The limit for most families is two children.)
The amount of the fine varies in different places because local governments can set the amount. For example, a migrant worker from the southwestern city of Chongqing who asked that his name not be used said he would have to pay 40,000 yuan if he wanted to get a hukou for his second child. Five years ago, the figure was 20,000 yuan, he added.
However, he said that that in the southern province of Guangdong where he works parents pay only a small fraction of the fee: about 2 percent of the official amount.
Getting a hukou in the country's megacities is difficult. In December, the capital introduced plans for a scoring system that allows people lacking a hukou to get permanent resident status, but the system makes "complying with the city's family planning policies" a precondition for applicants.
A 38-year-old accountant said she and her oldest son got Beijing hukou as dependents of her husband in 2013, but the application for her younger son was rejected, meaning his hukou is valid only in the central province of Hunan, where he was born.
When the accountant heard the government was ending the one-child policy, she said she asked police in Beijing several times about switching her son's hukou to Beijing, but "the answer has always been 'no way,'" she said.
This is a problem because the day when the boy needs to enroll in elementary school is fast approaching. Beijing's education officials say youngsters like the accountant's young son can still go to school in the city, but the rules for how this is done are fuzzy.
The woman said colleagues told her that several schools will only enroll children without a local hukou if parents can show documents proving the child is theirs and that the social maintenance fee has been paid.
The accountant said she has neither of these papers. The family actually paid the social maintenance fee for the youngest boy in Hunan Province, but agreed not to take a receipt so the government would let them pay less.
Yang, the health commission official, once said at a press conference that the situation in the capital is "special" so the rules for getting a hukou are "slightly stricter" than elsewhere.
This view has been criticized by experts. Zhan Zhongle, a law professor at Peking University, said that opinion reflected "departmental protectionism and regional protectionism."
"This problem is rooted in a mindset that values bureaucracy and officialdom," he said. "There is no legal basis for such an argument."
Wu Youshui, a lawyer from the eastern province of Zhejiang who has voiced opposition to the one-child policy, said Beijing should not enjoy any special privileges and that the rules should be the same in every province.
The social maintenance fee has become an important source of revenue for local family planning commissions, said a source who has worked in the government of the northwestern province of Gansu for more than three decades.
"If there were no barriers to obtain a hukou, then we'd have no way to collect money," the official said.
To encourage families to pay the fines, the family planning commission he works for has cut the penalty by up to one-fourth or even one-fifth, a discount that is common in many places.
Scholars and experts have criticized the legality of the social maintenance fee. Huang Wenzheng, a demographer at Johns Hopkins University in the United States, and Liang Jianzhang, an adjunct professor at Peking University's Guanghua School of Management, said keeping the fine in place even after the one-child policy was abandoned is a "gross failure" of the law.
"The only motivation for the family planning commission to carry on this policy is to protect its interests and maintain its existence," Huang and Liang wrote in an opinion piece published on Caixin's Chinese website.
But canceling the fee is "unfair to people who answered the country's call and obeyed the family planning policies," Song Shuli, spokesman for the national family planning commission, told The Beijing News in 2014.
Huang and Liang disagree, and point out that the fine hurts poor people more than the wealthy.
"Rich people can have more than one child as long as they pay the fine, but poor people have to lose their reproductive rights," they said. "How can we talk about fairness if families with different backgrounds are treated so differently?"
(This article appeared in Caixin, on February 22, 2016. Written by Sheng Menglu and Luo Ruiyao)