1 Introduction

Maternity leave refers to the leave allowed to working women before and after childbirth. Maternity leave systems have been established to fix the duration of women’s maternity leave by legal and institutional means, so as to ensure the health of pregnant women, to guarantee their right to nurture children, and to promote the healthy development of mothers and infants. Objectively speaking, the establishment of maternity leave systems provide a guarantee for maintaining women’s health and lay a foundation to support social development.

China’s maternity leave system was put in place shortly after the founding of the People’s Republic of China in 1949. During its nearly 70 years of development, the system has become increasingly detailed and complete. In particular, two recent adjustments to fertility policies at the ends of 2013 and 2015 made improvements to the maternity leave system. However, at the same time, the length and conditions of maternity leaves have been the subject of considerable controversy. For example, some experts believe that the duration of maternity leave needs to be extended, both to protect the physical health of women at childbearing age and to support the healthy development of children. Because China’s current fertility level is already very low, some believe that policies encouraging childbearing should be adopted, and that extending maternity leave is one such policy alternative. However, other experts believe it is a mistake to extend maternity leave in an open-ended manner. Maternity leaves that are too long not only affect women’s career development, but push all of the responsibilities for childbearing onto women, and this can seriously limit the potential of women to develop in the long run (Liu 2017; Hu 2017; Wu 2017; Zhang 2016). Given such debates, an examination of the impact of fertility policy adjustment on maternity leave policy is timely and helps us to understand the theoretical basis of maternity leave policy formulation, identify opportunities to improve the current maternity leave system, and offer suggestions on how to make further improvements to the maternity leave system.

The International Labour Organization (ILO) proposed in 2000 that maternity leave policies should provide for three elements: (1) provide at least 14 weeks of leave; (2) provide a woman with at least two-thirds of her income at the time the leave begins; and (3) provide for maternity leave costs to be paid by social insurance or public funds. In May 2014, the ILO reported that 34% of the 185 countries and regions in the world had met this standard. European countries, in particular have relatively complete maternity leave systems, with multiple types and forms of maternity leave. In addition to general maternity leave, there are also spouse care leave, breastfeeding leave, and even a three-year maternity leave option in some countries (ILO 2014).

2 The Evolution of China’s maternity leave policy

2.1 The defining period for maternity leave policy (1951–1987)

Shortly after the founding of new China, the Government Administration Council passed the Labor Insurance Regulations of the People’s Republic of China (the Insurance Regulations) in 1951. These regulations stipulated that “pregnant female workers and female employees are entitled to 56 days of leave before and after childbirth with full pay during maternity leave” (Government Administration Council 1951). In 1955, the State Council issued a notice on maternity leave for female employees, with the same content (State Council 1955). Eight weeks of leave were stipulated in the Insurance Regulations. This time guaranteed that childbearing women were able to rest, recuperate and adapt to their new life during the first month after delivery. It can be said that the 56 day maternity leave was a legal measure that ensured continuation of traditional Chinese customs for the postpartum care of new mothers.

The Insurance Regulations not only considered the needs of women whose pregnancies and deliveries were normal, but also considered the special needs created by dystocia, the birth of twins or other issues. According to the regulation, “when female workers and female employees face dystocia or have twins, they will be given an extra 14-day leave with full pay,” a measure that ensured these women had additional time to recover.

In addition, it is noteworthy that the Insurance Regulations also defined leave time for miscarriage. “When female workers and female employees are pregnant for less than 7 months and miscarry, they shall be given maternity leave of up to 30 days with full pay upon consent of a doctor.” In the event a miscarriage occurs before a pregnancy comes to term, these regulations calling for rest help to protect women’s reproductive health rights and minimize the physical and mental health damage that can be caused by difficult pregnancies.

2.2 The period during which maternity leave policy evolves (1988–2011)

In 1988, the State Council adopted the Regulations Governing Labour Protection for Female Staff Members and Workers (the Regulations). These were responsible for important changes to the maternity leave system. The duration of maternity leave took a huge leap from 56 days to 90 days, increasing from nearly 2 months (8 weeks) to 3 months (nearly 13 weeks). From a medical point of view, a period of 3 months gives women adequate time to recover from the physical effects of pregnancy, and time adapt to a period of lactation. In addition, the maternity leave was extended to 15 days for dystocia and 15 days for each extra child born per delivery. The number of days added to maternity leave for special circumstances increased by one, and more detailed rules for leaves for multiple births were introduced.

The Regulations had three obvious characteristics:

  1. 1.

    A broad focus on maternal and infant health care. While the Insurance Regulations of 1951 were focused primarily on protecting women’s rights and interests, the Regulations of 1988 had a dual focus of protecting the rights and interests of both women and children. The Regulations made it clear that pregnant women would enjoy 90 days of maternity leave, while refining the regulations on dystocia and multiple births. Also noteworthy, the Regulations stipulated that women would be allowed to schedule prenatal examinations as part of their workday, ensuring that women lost no earnings while obtaining the prenatal care they needed to safeguard the health of both mother and fetus. In addition, the new regulations stipulated the time for women to breastfeed, so as to ensure that infants obtained sufficient breast milk (State Council 1988). This rule remained in force until a new one was introduced in 2012.

    The significant contribution of the Regulations was the concern they had to protect not only the rights and interests of women, but also to fully protect the rights and interests of fetuses and infants by facilitating women’s access to prenatal examinations and setting a time period for lactation. Therefore, it was specified in the Regulations that “when pregnant female employees go for prenatal examinations during working hours, these shall be counted as working time”, and that “employers shall give female employees who have infants under one year old two break times of 30 min each for lactation (including artificial feeding) during the working hours of each shift. For multiple births, the time of lactation will be increased by 30 min for each additional infant” (State Council 1988).

  2. 2.

    A move from simply protecting pregnancy and childbirth at the family level to including protections in the workplace. The Regulations extended protection of pregnancy and childbirth in the family to include protection of pregnancy and childbirth in the workplace. In addition to facilitating pregnant women’s access to prenatal examinations and defining a period for lactation, the Regulations also stipulated that during pregnancy, women workers could not be assigned to do heavy physical work, could not have their working hours extended, and could not have their labor contracts terminated during pregnancy, childbirth and lactation. In addition, the regulations required employers to provide specified facilities and equipment in the workplace: “Employers with a large number of female employees should, in accordance with the relevant regulations of the state, establish facilities that are self-run or jointly run, such as health rooms, maternity lounges, lactation rooms, nurseries, kindergartens, etc., for female employees, and properly resolve the difficulties female employees have in maintaining physical health, and with infant feeding and infant care” (State Council 1988).

  3. 3.

    Couples who married late and had children late, both encouraged by family planning regulations, could enjoy extended maternity leave.

    Unfortunately, the Regulations did not have clear provisions mandating a specified rest period for women who had abortions.Footnote 1 The language is general: “for female employees who have an abortion during pregnancy, their employers should give maternity leave for a certain period of time with the consent of a doctor”. Decisions about the amount of leave time granted were made at the local level.

2.3 The period during which maternity leave policy was modified (2012-present)

In April 2012, an executive meeting of the State Council deliberated on and passed the Special Rules on the Labor Protection for Female Employees (the Special Rules). Using the Regulations of 1988 as the starting point, the new set of rules improved the maternity leave system. The Special Rules retained the focus of the earlier regulations on protecting the rights of both pregnant women and fetuses. Most importantly, the Special Rules refined earlier policy provisions, making them more flexible, while taking into account international practice and bringing China’s system in line with international standards.

While the Special Rules extended maternity leave from 90 days to 98 days, on the basis of the recommendations of the ILO and the fact that maternity leave is 98 days in most developed countries, the 1988 regulations on dystocia and multiple births were retained, as were the rules on prenatal examinations and lactation. The 1988 regulations setting out working conditions for pregnant women were also retained: pregnant women were not to be assigned heavy physical work, work that could negatively impact health, night shifts, or overtime, and rest breaks were to be arranged for pregnant women during their shifts. It is worth mentioning that a detailed list of the work that pregnant women and lactating women were prohibited from doing was published, so as to facilitate and implementation of the regulations (State Council 2012).

Maternity leave was extended from 90 days to 98 days, on the basis of the recommendations of the ILO and the fact that maternity leave is 98 days in most developed countries. Therefore, the Special Rules extended the maternity leave enjoyed by female employees from 90 days to 98 days (14 weeks) and regulated working conditions.

One important aspect of the Special Rules is that the amount of rest time after an abortion is clearly specified, making up for a shortcoming of the 1988 Regulations. “Female employees who have an abortion within 4 months of pregnancy shall enjoy 15 days of maternity leave; those who have an abortion after 4 months of pregnancy shall enjoy 42 days of maternity leave.” The 42 days of leave for women who have an abortion after the fourth month of pregnancy is 12 days more than what was stipulated in the 1951 Insurance Regulations (for women who miscarried within the first 7 months of pregnancy). This helps to ensure that women having an abortion get sufficient rest and can recover physically from any damage to their reproductive health. This is a key aspect of keeping women of childbearing age healthy (State Council 2012).

After the promulgation of the Special Regulations, significant adjustments were made to China’s fertility policies. At the end of 2013, a revision of the policy that allowed couples meeting the condition that either husband or wife was an only child to have two children came into force, and at the beginning of 2016, China began implementation of the new Universal Two-Child Policy. China’s 31 provincesFootnote 2 developed regulations for population and family planning that included items on maternity leave. These regulations have extended the scope of maternity leave mandated by national policy, and in the provinces, provisions for paternity leave have been put in place.

During this period, two key adjustments improved the maternity leave system. First, consideration began being given to gender equality, and provisions for paternity leave were added in order to promote the joint responsibility of husband and wife to provide care for their child. Second, the focus changed from population size to human-centered service. From a people-oriented perspective, China’s provinces have begun giving more consideration to the notion of age-appropriate childbearing. For example, the increased length of maternity leave for late childbearing has been eliminated from 31 provincial family planning regulations, and the length of maternity leave is now the same for women of all ages. This means that older women still of childbearing age are no longer encouraged to have a child.

3 Characteristics of current maternity leave policies

3.1 Major changes to maternity leave

Several changes in the regulations for maternity leave have been made since 2013:

First, the statutory maternity leave period stipulated by the national government has been increased from 90 days to 98 days.

Second, China’s provinces have increased the number of days of maternity leave based on standards set at the national level, but the length set for maternity leave differs from province to province.

Third, rules concerning the amount of leave time granted for abortions have been clarified, with the length of the leave determined according to the time during pregnancy when abortion occurs.

Fourth, rules calling for paternity leave have been clarified in order to strengthen the responsibility of males in the childbearing and parenting process.

Fifth, in many provinces, regulations have lengthened the duration of maternity leave, and in some cases provincial regulations make the duration of maternity leave negotiable.

Sixth, rules stipulating what portion of their earnings women are to be paid during maternity leave have been clarified.

3.2 Rules stipulating the length of time of maternity leave are not uniform in China’s provincesFootnote 3

With respect to maternity leave, the most important considerations for women bearing children are the amount of time of the leave and the amount of payment they receive during the maternity leave. Since the changes to fertility policies made at the national level came into effect, each province has issued its own family planning regulations, and in these provincial regulations the times stipulated for increasing maternity leave have been formulated on the basis of the situations of the individual provinces. As a result, the increased number of days of maternity leaves and the amounts of remuneration for women are not uniform from province to province.

The revised population and family planning regulations in the 31 provinces all have provisions on maternity leave. Except for Tibet, which stipulates maternity leave of 1 year, all other provinces have increased the duration of maternity leave by at least 30 days to as much as 6 months, with the majority of provinces increasing duration by 60 days (original 98 days plus 60 days equals to 158 days). Beijing, Zhejiang, Jilin, Chongqing, Shaanxi, and Hainan have increased maternity leave for times ranging from 1 month to 1 year based on negotiations between employees and employers. Women in Shaanxi and Zhejiang can negotiate breastfeeding leave for 3–6 months, In order to encourage antenatal examinations for couples, women who participate in antenatal examinations can enjoy an extra 10 days of maternity leave in Shaanxi province.

Table 1 shows the amounts of maternity leave time mandated by China’s provinces. The shortest period for maternity leave is 128 days (nearly four and one half months) offered by seven provinces and cities. The area with the longest maternity leave is Tibet autonomous region, which offers 1 year, followed by Henan and Hainan, which each offer 188 days or nearly 7 months. The length of maternity leaves in Jilin, Chongqing, Hainan and Zhejiang can range up to 1 year if the employer agrees. It’s only those who have only one child could enjoy 1 year maternity leave.in Zhejiang province.

Table 1 Regulations for maternity leave in different provinces (cities and autonomous regions)
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3.3 Paternity leave

The family planning regulations of China’s provinces have extended the time of maternity leave and have made provisions for paternity leave on the basis of rules for maternity leave. These provisions are conducive to maternal and infant health, gender equality, and the integrity and harmonious development of families. Among the provinces, Henan and two other provinces have stipulated 30 days of paternity leave. In some provinces, the duration of paternity leave varies depending on whether couples live together, or are separated either by short or by long distances. This is conducive to encouraging families to give birth to children in accordance with current policies and to promoting family harmony.

All of the 31 provinces provide for 7–30 days of paternity leave, with the majority offering 15–20 days. Tianjin and Shanghai offer the least paternity leave of 7 days, while Gansu, Tibet, Yunnan and Henan offer the most paternity leave, allowing spouses 30 days of leave. Paternity leave for couples living in the same place in Anhui and Shaanxi is 10 days, while that for couples living in different places can be increased to 20 days (see Table 2).

Table 2 Regulations of different provinces (cities, autonomous regions) on spouse accompanying leave
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The intentions of providing for paternity leave are to encourage men to become more responsible and involved in the childbearing process, and to promote respect and equality of the sexes. Men should not only take care of their wives during the childbearing period, but should also be involved in the process of raising children. In China, most provinces refer to paternity leave in language that can be translated as male spouse accompanying leave, or nursing leave. Unfortunately, this language suggests that the only role for men is caring for women during the childbearing period, and that males lack responsibility for the raising of children (Table 3).

Table 3 Regulations for the payment of salary during maternity leave in different provinces (provincial level municipalities and autonomous regions) in China*
Full size table

3.4 Salary payments during maternity leave

Regarding the issue of salary or wage payments during maternity leave, there is a clear provision in the Insurance Regulations of 1951 for the payment of salary during maternity leave: “during maternity leave, salary should be paid in full.” Subsequent regulations have continued to provide for the payment of salary during maternity leave.

With the development China’s economy over time, maternity insurance offered by third-party insurers with premiums paid by employers on behalf of employees has come to be included in the maternity leave system. The Special Rules state that “for those enterprises already participating in the maternity insurance system, the salary of female employees during maternity leave shall be paid by the maternity insurance fund; for those enterprises not participating in the maternity insurance system, the salary of women during maternity leave shall be paid by the employer “.

It is particularly noteworthy that the Special Rules make clear that “if pregnant female employees go for pre-natal examinations during working hours, the time required shall be included in the working hours.” The rules also state that “the employer shall arrange 1 h of lactation time for lactating female employees during the working hours of each day, and if female employees have multiple births, 1 h of lactation time shall be added for each infant every day”. As noted, the time women take for pre-natal examinations and lactation are counted as working hours and are subject to full pay.

The vast majority of provinces have made clear provisions in their family planning regulations for the payment of salary during maternity leave.

Provincial regulations recognize that women on maternity leave are entitled to compensation, but the provinces do not all handle this matter in the same way. In 22 provinces all maternity leave time (the 98 days of statutory time plus additional time for special circumstances) is treated as regular work time for the purpose of calculating salary or wage payments to women taking maternity leave. Nine provinces stipulate that the woman’s salaryFootnote 4 during the maternity leave period should be paid in full or not lower than the original income level, or the amount of payment required during the maternity leave period is not clearly stated. (These provinces are subject to the provisions of the Special Rules, and pay wages during the period of maternity leave based on the wage level before maternity leave.) Since it is not clear whether employers must include bonus or social welfare payments as part of salary payments for maternity leave, women in some provinces or regions may receive only the basic salary while others may receive basic salary plus bonus and social welfare payments. Some provinces make it clear that if there is maternity insurance available, the insurance must pay maternity leave compensation based on the provisions of the maternity insurance. Some provinces make no mention of extended periods of maternity leave, and in these provinces there may be no compensation paid for extended periods of maternity leave or there may be additional regulations covering these situations. Some provinces have provisions that allow women to negotiate the conditions of maternity leave. The compensation level for the maternity leave period arrived at by negotiation is a certain proportion of the woman’s original wage level.

Tianjin and Shaanxi treat the statutory 98 day maternity leave period differently than the extended maternity leave period. Tianjin stipulates that if the woman does not actually take the extended leave, she can be compensated in the form of extra salary paid for the time not taken off. That is to say, existing regulations in Tianjin do not require employers to implement the 30 days of extended maternity leave for special circumstances; they can make payments in lieu of time off. In Shaanxi regulations call for extended maternity leave to be compensated according to standards set by the maternity insurance system.

4 Relevant suggestions to aid formulation of maternity leave policies in the future

All localities have made appropriate adjustments to their maternity leave systems after improvements to fertility policies. The ability to negotiate the length of maternity leave or the length of lactation leave with employers gives women more flexibility and practical options, helping them to provide better care for infants. There is still room for improvement to the of maternity leave system.

  1. 1.

    There should be a relatively uniform approach to maternity leave and paternity leave throughout China. At present, the time stipulated for maternity leave varies greatly from 128 days to 360 days among provinces. The provision of maternity leave is intended mainly to protect and improve the health of mothers and infants, and reduce infant mortality. There should little difference in the length of maternity leave among provinces. A uniform recommended time should be set at the national level. In consideration of the fact that natural breastfeeding should take place for 6 months, it is suggested that the unified national standard for maternity leave be set at 180 days. Localities can then set maternity leave times based on their economic development situation and their needs for maternal and infant health care. In addition, the time allotted for paternity leave in the provinces (provincial level municipalities and autonomous regions) varies from 7 days to 30 days; the difference is quite great. We believe a uniform time for paternity leave is also needed. The provinces could use this as a guideline to set their own time limits.

  2. 2.

    An effort to implement maternity leave policies is needed. At present, although a maternity leave system exists, policy implementation differs greatly among regions and enterprises, particularly private enterprises. Therefore, in order to ensure the effective implementation of maternity leave, it is necessary to formulate specific implementation rules. The rules should include whether to offer rewards or impose penalties for maternity leave implementation issues. Regions, enterprises and employers that do not implement the provisions of maternity leave policies should be penalized, while those that implement policies should be rewarded with, for example, tax reductions or credits. In addition, we need to strengthen implementation of the maternity insurance system. For areas and employers that are unable to implement maternity leave, we can make use of maternity insurance to implement policy provisions. The improvement of the maternity insurance system that offers third-party payments can not only reduce the burdens on enterprises, but also provide welfare protection for pregnant women, ensuring women’s reproductive health rights are protected. The ILO sees a maternity insurance system as one of the three pillars of the maternity leave system.

  3. 3.

    Consideration must be given to implementation of rules defining the salary payments or compensation in lieu of salary women receive during maternity leave. At present, there are significant differences from r egion to region to the amount of salary or compensation women receive during maternity leave. Most regions stipulate that the amount of payments made to women during the maternity leave period (including the 98-day leave in the Special Rules and extensions to maternity leave set out in provincial family planning regulations) shall be the same amount the women receive in salary or wages during normal working time, and that women shall be guaranteed the payment of wages during time off they take from work to go for maternity examinations or for lactation. However, some regions only offer compensation for the 98 days of maternity leave stipulated in the Special Rules. These rules do not guarantee compensation during the extended maternity leave periods called for in some provincial family planning regulations. In addition, some provinces have not made it clear whether women should be paid at the basic salary level during the maternity leave period or whether they should receive basic salary plus bonuses and other welfare benefits they would be entitled to if they were on the job. There are significant regional differences in the amounts of salary payments or compensation in lieu of salary women receive during maternity leave. When modifying relevant laws and regulations, we should pay attention to making improvements in this area.