Positive Law Inducements for Child Rearing in Romania

Positive Law Inducements for Child Rearing in Romania Presented by: Dr. FLORIAN Date: 8 October 2023 CURRENT PRIVATE LAW FRAMEWORK FOR FAMILIES IN ROMANΙΑ - Equal legal status between children born/conceived during marriage and children out of wedlock. - Marriage - only between a man and a woman, with an equal legal status for both spouses. - Non-recognition of foreign registered partnerships of any kind or foreign same-sex marriages (international private law order public). - Motherhood is dependent on birth, not genetic links. - Surrogacy is not expressly forbidden, but parental authority cannot be voluntarily transferred. - Adoption is generally available only for married couples and individuals, exceptionally subsequent adoption for heterosexual cohabiting couples. Current Statutory Inducements For Child Rearing - - Universal child allowance (Law no. 61/1993): • children below 2 or disabled children - 631 lei (127 Euro) in 2023 • children between 2 and 18 years of age - 256 lei (52 Euro) in 2023 Allowance for limited income families with underage children (Law no. 277/2010): • Two-parent families - average after-tax monthly income per person less than 48 Euro/month/person receive an allowance which is between 20 Euro/month for one child and 80 Euro/month for four or more children. Families with an average after-tax income between 48 and 126 Euro/month/person receive an allowance between 18 Euro/month for one child and 72 Euro/month for four or more children. • Single-parent families average after-tax monthly income per person less than 48 Euro/month/person receive an allowance between 26 Euro/month for one child and 104 Euro/month for four or more children. Single-parent families with an average income between 48 and 126 Euro/month/person receive an allowance which between 24.5 Euro/month for one child and 98 Euro/month for four or more children. Allowance and work leave for child rearing (Government Emergency Decree no. 111/2010) - 85% of the average after-tax income gained in the last 12 months before the child's birth -maximum 8,500 lei (1,700 Euro) per month, guaranteed minimum allowance threshold of 2.5 times the Social Reference Indicator (which is 598 lei/120 Euro in 2023) between 300 Euro and 1,700 Euro at 2023 level - The allowance for child rearing is paid from the end of the maternal childbirth leave (minimum of 42 days after birth) up until the child's 2nd birthday (3rd birthday for disabled children). - If both parents fulfill the conditions for receiving the child rearing allowance, the second parent has to take at least two months off and receive this allowance, otherwise those two months are lost and non-transferrable to the other parent. Other social benefits targetting families - Social minimum income (Law no. 416/2001): • Level adjusted to the Social Reference Indicator (598 lei/120 Euro, in 2023) and the number of cohabiting family members. • Between 28.3% of S.R.I. (62 Euro) for a single-person household and 105.4% of S.R.I. (127 Euro) for a five-person household, with an extra 7.3% of S.R.I. (9 Euro) for each supplemental family member. - Minimum income for inclusion (Law no. 196/2016): • The beneficiary's monthly after-tax income - less than 700 lei (140 Euro) for a single person, with 350 lei (70 Euro) added for each extra family member. • First tier - for families earning less than 275 lei/month (55 Euro) for the first person and 50% of that for each subsequent person: the aid for two-parent families is between 107 lei (22 Euro) for one child and 428 lei (88 Euro) for four or more children, while the aid for single-parent families is between 120 lei (24 Euro) and 480 lei (96 Euro). • Second tier - for families earning monthly between 276 lei (55 Euro) and 700 lei (140 Euro) for the first person and 50% of that for each subsequent person, the aid for two-parent families is between 85 lei (17 Euro) for one child and 340 lei (68 Euro) for four or more children, while the aid for single-parent households is between 110 lei (22 Euro) and 430 lei (86 Euro). Past attempts at solving demographic problems through legislation - After WW2 - abortion was legalized in Romania in 1957 (Decree no. 463 of the leadership of the National Assembly). - Abortions - main contraceptive method at the time. - Total number of abortions increased from 112,000 in 1958 to 1,115,000 in 1966 (four times the total number of births). - 1966 - prior permissive legislation was abolished by Decree no. 770/1966 of the State Council - Abortion was generally banned with some exceptions: the pregnancy endangers the mother's life, one of the parents has a serious transmissible hereditary disease, the pregnant woman has serious mental or physical disabilities, is over 45 years of age, gave birth to four children whom she cares for, the pregnancy is the result of rape or incest. - Exceptions - available only in the first three months of pregnancy. - Only abortions justified by an exceptional pathological condition being allowed up until the sixth month of pregnancy - The limited permissible abortions - only by specialist physicians, in specialized medical institutions, with the prior authorization from a county or town-level medical committee. Historic results of tentative demographic manipulation - 1966 - ban on abortions - short-term doubling of the fertility rate (3.7 in 1966, 3.6 in 1968) from a prior decreasing trend (2.0 in 1962, 1.9 in 1966). - After 1968 - repressive abortion policies remained -the fertility rate slowly fell to 2.2 in 1989. - Highest after-war rate of birth - in the 1950s (25.6% in 1955) but it decreased naturally from 1956 (24.2%) to 1965 (14.3%). - Extensive ban on abortions at the end of 1966 - short-term rise in the rate of births to 27.4% in 1967 and 26.8% in 1968. - The crude rate of births levelled off in the 1980s to between 14% and 18%. Work leaves related to children - Childcare leave • paid child rearing leave up until the age of 2 (for disabled children - up until the age of 3) • 45 days per year of medical leave for caring for a sick child up until the age of 12 (until the age of 18 for a child with disabilities and intercurrent afflictions) - Maternity leave • up to 126 days, including pregnancy leave and childbirth leave (minimum 42 days for the latter) - Paternity leave • 10 working days during the child's first 8 weeks (if paternity legally established) • Extended to 15 working days if the father has a graduation certificate for a child rearing course • - supplemental work leave of up to 120 days Maternity risk leave • can be used before the regular maternity leave or after the regular leave for giving birth if the employer cannot accommodate the risks to the health and safety of the mothers or negative consequences for the pregnancy or breastfeeding by changing the working conditions, the schedule or the place of work Tax deductions related to children - Employer-provided money presents or gift certificates for the employees' children - taxdeductible for profit-tax purposes up to 5% of the employer's whole payroll expenses. - Employers can deduct (for profit tax purposes) the expenses for running their own daycares and kindergartens, capped at 5% of total payroll expenses. - The allowances for pregnancy risk, maternity leave, child rearing and caring for a sick child are all exempted from income tax and social security contributions. - 'Personal tax deduction' for dependent family members, including spouses, children, close relatives or in-laws, whose monthly income does not exceed 20% of the national minimum wage: • Only for the caregiving employees whose monthly income exceeds the gross national minimum monthly wage (3,000 lei/600 Euro in 2023) with up to 2,000 lei (400 Euro). • Deducted from the pre-tax wages - between 45% of the gross national minim monthly wage (for a person earning the minimum monthly wage with 4 or more dependents) and 0% for a person earning slightly below 5,000 lei per month (1,000 Euro) but with no dependents. Deficiencies of current child rearing inducements - Very limited tax deductions for children and childcare. - Limited financial support after the age of 2 (or 3 for disabled children). - Token social benefits and childcare opportunities for working-class and middle-class families. - Non-correlation between social benefits and actual cost-of-living. Challenges to the current family legal framework - Recognition of foreign registered partnerships and foreign same-sex marriages for the purposes of EU freedom of travel (Coman and Hamilton v. Romania, ECJ case C673/16). - Legal status or recognition for same-sex couples - case no. 20081/19 Buhuceanu and others (May 23rd, 2023) - European Court of Human Rights found that Romania has violated the plaintiffs (21 same-sex couples) rights to family life and private life (art. 8 of the European Convention on Human Rights). - European Commission proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood -automatic recognition of any other types of parenthood from other member states. De lege ferenda suggestions - Filling the gaps between the end of the standard child rearing leave (at age 2) and the beginning of kindergarten (age 3). - Better availability and lower cost of day-care and after-school. - More generous social benefits for working class and middle class families with children to avoid in-work poverty. Conclusions - Demographic growth for long periods of time cannot be coerced through statutory means (e.g. 1966 abortion ban) - long term trends resurfaced after a few years of societal adjustments. - Purpose of statutory intervention should be to make it easier for people to have the family and number of children they want - decrease the burdens of early childhood for parents (generous child rearing leave and allowance, daycare and childcare options, flexible working options), decrease the challenges and costs of education for older children. - Realistic but slightly ambitious demographic target - reaching a replacement level fertility rate (2.1 instead of the current 1.7 to 1.8)