29 September 2023
On September 29th, 2023, at 16:00 C.E.T., we have organized a webinar-type dissemination event for the “Demographic Challenges – Legal Responses” project of the Central European Academy in Budapest. The attendees were law professors from Babes-Bolyai University in Cluj-Napoca, Romania, and practicing lawyers from the Cluj County Bar Association in Romania.
There were two presentations given in Power Point format, one from Professor Emese Florian, Ph.D., with an introductory nature and titled “A World of 8 billion – And Counting”, and a joint presentation from Professor Emese Florian and Assistant Professor Marius Floare, read by Assistant Professor Marius Floare. Notable interventions were also given by Associate Professor Felicia Rosioru, Ph.D. from Babes-Bolyai University, and attorneys Carmen-Nora Lazăr and Patricia Floare from the Cluj County Bar Association.
After the initial greetings and introductory remarks about the scope of the project, Professor Emese Florian started to give a demographic introduction to the webinar with her presentation titled “A World of 8 billion – and counting” and the opening question was about the significance of this staggering number. Professor Florian’s presentation used statistical data provided by “Our World in Data” website.
The first statistical slide related to the evolution of the world population over the last 12,000 years. Around 10,000 years B.C. there were only 4 million living humans on Earth and the growth rate for more than eight millennia (from 10,000 B.C. to 1,700 B.C.) was only 0,04% per year. At the start of the Christian Era (year 0), there were about 190 million living humans, but global life expectancy was only about 30 years up until the 19th century. A notable population event took place in the mid-14th century when the Black Death plague pandemic killed between one quarter and one half of the population of Europe. Other notable population waypoints were in 1700, when the global population reached 600 million, in 1800, when the population was around 990 million, and in 1900, when the population reached 1.65 billion. The two billion landmark was reached in 1928, 3 billion in 1960, 4 billion in 1975, 5 billion in 1987, 6 billion in 1999, 7 billion in 2011 and 7.9 billion in 2022. Global life expectancy reached 73 years in 2019.
The next demographically relevant data regarded life expectancy at birth between 1950 and 2021, which shot up from 46.5 years in 1950 to 71 years in 2021, the latter having slightly decreased right after the Covid 19 pandemic. The situation in the European Union was slightly different with a much higher life expectancy at birth in 1950 (62.8 years) and a 2021 life expectancy of 77 years as an E.U. average.
The fertility rate measures the average number of children per woman. A total fertility rate of 2.1 represents the replacement level fertility which is the average number of children per woman needed for each generation to exactly replace itself without needing international immigration. A value below 2.1 will cause the native population to decline. The statistical data presented by Professor Florian on the fertility rate shows big discrepancies between the world average and the European Union average, according to the United Nations’ World Population Prospects from 2022. The world fertility rate expressed as children per woman has decreased from 4.86 in 1950 to a projected 2.32 in the year 2100. The European Union’s fertility rate had a starting level of only 2.7 in 1950 and it is projected to remain stable at 1.48 in 2100. This shows that the population growth is not evenly distributed across the planet and the demographic crisis is more of a European issue.
Professor Florian showed that the 2022 World Population Prospects analysis from the United Nations estimated that the world’s population will stabilize at slightly more than 10 billion inhabitants between 2060 and 2100. The 1950 world population was only a bit more than 2 billion people. The situation in Europe is different in regard to the total population, with a starting point for the countries in the European Union of 549.72 million in 1950, a high of 745.17 million in 2020, and an estimated decrease to 586.52 million in 2100. The E.U.’s share of the world’s population has decreased from 12% in 1960 to 6% in 2023 and will further decrease to 4% in 2070, according to the European Commission study from January 2023 titled “The Impact of Demographic Change in a Changing Environment”.
The presentation also showed an interactive slide which skews the world’s physical map according to the countries’ population from 1800 to 2100, at the turn of each century. The relative size of Europe and North America is dramatically decreasing if one only considers their current and projected populations.
The conclusions reached by the lecturer are that we are living in a world of 8 billion and counting, but the population growth does not happen evenly across the planet. The European Union is on the brink of a major demographic shift. The European Union’s population is shrinking, having fewer people in January 2022 compared to January 2020. The population is also ageing fast, with over a 5th of the E.U. inhabitants being now 65 years of age or over and the share of those aged 80 or above had almost doubled in 2022 compared to 2002. The share of working-age people in the total population is also declining. The European Union has another demographic problem in the low fertility rate, which is currently at 1.615 births per woman, well below the replacement level fertility of 2.1.
The lecturer asks some final rhetorical questions about the major demographic shift concerning the European Union: whether we should intervene by legal means in these demographic evolutions, if we can really intervene and if so, on which demographic factor could we intercede.
The discussion following Professor Florian’s presentation concerned mainly the fertility rate per woman and the fact that having only one child, and even two, means that you as an individual are not helping the national fertility rate reach its replacement level. There are numerous logistical issues for families having three or more children, especially in an urban environment. Doctor Floare stated that even in countries that traditionally have high levels of fertility, once urbanization and prosperity reach a certain level, there is an unavoidable fertility decline, even if there is no public policy to restrict fertility as was the case in China until recently. China is a prime example where if fertility is supressed for a long enough period, there is no going back. Although most of the Chinese fertility restrictions were eliminated, the population became accustomed to them and thus fertility has remained well below replacement level.
The second presentation, jointly drawn up by professor Emese Florian and Assistant Professor Marius Floare, was titled “Helping Families Grow Through Statutory Intervention”. The presentation was given by Assistant Professor Floare. The highest fertility rate in Romania in the after-war period was during the ‘little baby boom’ of 1948-1955, when the average fertility rate was 3.23 births per woman. This fertility rate began to fall quickly below 3.0 in 1955 and then even below the replacement level of 2.1 (2.0 in 1962, 1.9 in 1966). The 1966 ban on abortions led to a short-term doubling of the fertility rate (3.7 in 1966, 3.6 in 1968). In spite of the repressive abortion policies, the fertility rate fell slowly to 2.2 in 1989. In the 1990s, the lifting of the ban on abortions and the socio-economic upheaval of the time led to a dramatic decrease in the total fertility rate from 1.8 live births per woman in 1990, 1.5 in 1992 and 1.3 in 1995, a level that had remained basically unchanged until 2010.
In 2022, the total fertility rate in Romania was 1.74, amongst the highest in Europe and third highest in the European Union, slightly below the ones in France (1.79) and Ireland (1.76). The total fertility rate has been steadily increasing since 2011, the average of live births per woman growing from 1.47 in 2011, 1.62 in 2015 and above 1.71 since 2017, plateauing at around 1.8 in the 2020s.
The crude rate of birth in Romania (birth rate per thousand population) has been decreasing since the 1970s. It was 19.1‰ in 1960, 21.1‰ in 1970, 18‰ in 1980 and around 10‰ (interval between 9.4‰ and 10.5‰) since 2000. Historically, the highest after-war rate of birth was reached in the 1950s (25.6‰ in 1955) and it had rapidly decreased from 1956 (24.2‰) to 1965 (14.3‰). The extensive ban on abortions at the end of 1966 led to a short-term rise in the rate of births to 27.4‰ in 1967 and 26.8‰ in 1968, but this boost was short-lived, and the crude rate of births levelled off in the 1980s to between 14‰ and 18‰.
After the Second World War, abortion was legalized in Romania in 1957 by Decree no. 463 of the leadership of the National Assembly. Abortions became the main contraceptive method and their total number increased from 112,000 in 1958 to 1,115,000 in 1966, which meant four times more than the total number of births.
In 1966, the prior permissive legislation was abolished by Decree no. 770/1966 of the State Council and abortion was generally banned with some exceptions. Because there were no other readily available contraceptive methods, this abortion ban led to a rapid but short-lived increase in the number of births, which were doubled in two years. However, by the 1980s, clandestine abortions and improvised contraception were again widespread, with the poor economic outlook leading to a decrease in the number of live births. By 1983, the total number of births and the fertility rate were close to the level encountered in 1966, right before the adoption ban.
The current private law framework for families in Romania has an equal legal status between children born or conceived during marriage and those born out of wedlock. Marriage can only be concluded between a man and a woman, with an equal legal status for both spouses. Romanian law has private international ordre public provisions about the non-recognition of foreign registered partnerships of any kind or foreign same-sex marriages. Motherhood is dependent on birth, not on genetic links. Surrogacy is not expressly forbidden in domestic law, but parental authority cannot be voluntarily transferred.
The current statutory inducements for child rearing include the universal child allowance which is the equivalent of 127 Euros for all children below the age of 2 and for disabled children between 2 and 18. Non-disabled children receive an allowance of 52 Euros between the ages of 2 and 18.
The allowance for limited income families with underage children for two-parent families with an average after-tax monthly income per person which is 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 a mean after-tax monthly income per person which is between 48 and 126 Euro/month/person receive an allowance which is between 18 Euro/month for one child and 72 Euro/month for four or more children.
Single-parent families with a mean after-tax monthly income per person which is less than 48 Euro/month/person receive an allowance which is between 26 Euro/month for one child and 104 Euro/month for four or more children. Single-parent families with a mean after-tax monthly income per person which is between 48 and 126 Euro/month/person receive an allowance which is between 24.5 Euro/month for one child and 98 Euro/month for four or more children.
The allowance and work leave for child rearing (Government Emergency Decree no. 111/2010) is 85% of the average after-tax income gained in the last 12 months before the child’s birth, with a maximum of 8,500 lei (1,700 Euro) per month and a guaranteed minimum allowance threshold of 2.5 times the Social Reference Indicator (which is 598 lei/120 Euro in 2023), which makes it 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 fulfil 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.
There are other social benefits targeting families, such as the social minimum income or the social minimum income for inclusion, but the amounts involved are quite limited.
Past attempts at solving demographic issues through legislation have failed. After WW2, abortion was legalized in Romania in 1957 (Decree no. 463 of the leadership of the National Assembly). Abortions were the main contraceptive method at the time. The total number increased from 112,000 in 1958 to 1,115,000 in 1966 (four times the total number of births). In 1966, the prior permissive legislation was abolished by Decree no. 770/1966 of the State Council. Abortion was generally banned with some exceptions: the pregnancy endangered the mother’s life, one of the parents had a serious transmissible hereditary disease, the pregnant woman had serious mental or physical disabilities, was over 45 years of age, gave birth to four children who she cares for, the pregnancy is the result of rape or incest. Exceptions were 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. Those limited permissible abortions were to be carried out only by specialist physicians, in specialized medical institutions, with the prior authorization from a county or town-level medical committee.
The historic results of attempts to manipulate demographics were poor and their effect was short-lived, with both the fertility rate and the crude rate of birth returning to their prior levels and tendencies in about two decades of adjustment, in spite of the statutory band remaining on the books.
Romanian law also has several work leaves related to children, such as the generous paid child rearing leave of up to 2 years and even 3 for disabled children, 45 days per year of medical leave for caring for a sick child up to the age of 12, or even 18 for disabled children with intercurrent afflictions, maternity leave of 126 days, paternity leave of 10-15 days, maternity risk leave of up to 120 days.
The presentation concluded that the tax deductions related to children are very limited, there is limited financial support after the age of 2, limited free or reduced-price daycare or childcare opportunities and token social benefits for working class and middle-class families.
The participants concluded that demographic growth for long periods of time cannot be coerced through statutory means because long term trends resurface after a few years of societal adjustment. The purpose of statutory intervention should be to make it easier for people to have the family they want and decrease the burdens of early childhood for parents with generous child rearing leave and allowance, daycare and childcare options, flexible working options, decrease the challenges and costs of education for older children. A realistic but slightly ambitious demographic target is to reach a replacement level fertility rate of 2.1 instead of the current 1.7 to 1.8 in Romania.
