[4] New family planning policies bring more trouble for premarital pregnancies
[2] Compiled from: Jufa, Red Star News
[3] For the post-80s and post-90s generations, "family planning" seems to be a term heard since childhood, from the long-standing one-child policy to the two-child policy, and yesterday the three-child policy also arrived. As the whole country erupted in heated discussions, it also sparked reflections on some issues. For example, can unmarried pregnant women enjoy maternity leave benefits?
Case review
[4] July 1, 2015
[5] Xiao Hong joined Company A in Beijing.
[6] November 12, 2016
Xiaohong gave birth to a child out of wedlock.
From November 12, 2016 to April 3, 2017
Xiaohong took maternity leave.
June 28, 2017
Xiaohong had a dispute with Company A over her filming of the workplace; Xiaohong called the police; Company A deleted Xiaohong's attendance records.
July 4, 2017
Company A terminated its labor relationship with Xiao Hong on the grounds of serious violation of company rules, citing Xiao Hong's absenteeism and filming of colleagues' workstations.
Arbitration
Xiao Hong applied for arbitration to the Beijing Chaoyang District Labor and Personnel Dispute Arbitration Committee, requesting Company A to pay wages, among other things. The Arbitration Committee issued a ruling under document number Jing Chao Lao Ren Zhong Zi (2017) No. 12781, deciding: 1. Company A shall revoke the termination notice of the labor contract and continue to perform the labor contract with Xiao Hong; 2. Xiao Hong's other arbitration requests were dismissed.
Litigation
Both Xiao Hong and Company A disagreed with the ruling and thus filed a lawsuit with the court.
The court of first instance held
Xiao Hong gave birth out of wedlock, which does not comply with national policies. Her request for maternity leave wages lacks legal basis, and the court of first instance did not support it.
The appellate court holds
Regarding the second disputed issue, Xiao Hong appealed, claiming that Company A should pay her maternity leave wages. In this regard, this court holds that as of the second-instance trial, Xiao Hong remained unmarried, and her childbirth out of wedlock does not comply with China's national policies. Therefore, this court cannot support this appeal claim.
April 28, 2021
The Beijing High Court accepted the retrial application.
Laws & Regulations
The Population and Family Planning Law of the People's Republic of China
Article 17 Citizens have the right to reproduction, as well as the obligation to practice family planning in accordance with the law. Both husband and wife share joint responsibility in practicing family planning.
The Population and Family Planning Law of the People's Republic of China
Article 26 During pregnancy, childbirth, and breastfeeding, women shall enjoy special labor protection and may receive assistance and compensation in accordance with relevant state regulations. Citizens who undergo family planning surgeries shall enjoy the leave provided by the state; local people's governments may grant rewards.
Special Provisions on Labor Protection for Female Employees
Article 5 Employers shall not reduce the wages of female employees, dismiss them, or terminate their labor or employment contracts due to pregnancy, childbirth, or breastfeeding.
Social Insurance Law of the People's Republic of China
Article 56 Employees may, under any of the following circumstances, enjoy maternity allowance in accordance with state regulations:
(1) Female employees taking maternity leave for childbirth;
(2) Taking leave for family planning surgery;
(3) Other circumstances as provided by laws and regulations.
Maternity allowance shall be calculated and paid based on the average monthly salary of employees in the employer in the previous year.
[1] Relevant documents
[2] "Reply of the Wage Bureau of the Ministry of Labor on Whether Unmarried Female Workers Are Entitled to Labor Insurance Benefits for Childbirth":[3] When an unmarried female worker gives birth, she is not entitled to childbirth benefits as stipulated in the labor insurance regulations. Wages shall not be paid for the period of rest she requires. For those with financial difficulties, the enterprise administration may provide appropriate subsidies on a case-by-case basis.
[1] The author's perspective
[4] In this case, Xiaohong is a typical example of premarital pregnancy. Both courts held that premarital pregnancy does not comply with national policies, so Xiaohong is not entitled to maternity leave benefits. The author once had a doubt: Are maternity leave benefits not intended for women who give birth? Why must they specifically require being married?
[5] First, we need to distinguish between maternity leave and maternity leave benefits. Maternity leave for female workers is statutory. Regardless of whether the childbirth complies with family planning policies, as long as the employee requests maternity leave and the fact of childbirth exists, the company must unconditionally approve her to enjoy 98 days of maternity leave. However, unmarried childbirth violates national family planning policies, so during the maternity leave period, she cannot enjoy the same benefits as employees who comply with family planning policies (such as examination fees, delivery fees, surgery fees, hospitalization fees, medication fees, and maternity leave wages). It is worth noting that although unmarried childbirth is considered not in line with the current national fertility policy, according to the above laws and regulations, employers cannot dismiss female workers during their childbirth or breastfeeding periods. If the employer terminates the labor contract during this period, it must pay compensation for illegal termination of the labor contract.
