Japan’s Archaic Civil Code and the Plight of the Unregistered

There are times in life when a person needs to submit fundamental documentary proof of his or her identity, birthdate, citizenship, and parentage—for example, for purposes of securing a passport or a marriage license or claiming an inheritance. In the West, each individual is issued a certificate of birth that can be used for such purposes. In Japan, this function is assigned to the family registry, or koseki. Those who through no fault of their own find themselves with no koseki registration are in essence denied their rights as Japanese citizens. In the following, I examine this social issue and its roots in Japan’s outdated Civil Code.

Japan’s Archaic Family Registry System

Under the koseki system, local governments are required to maintain registries for each Japanese household in their jurisdiction, and each such household is required to report births, deaths, marriages, and other changes in family composition.

Koseki registration is limited to Japanese citizens. (Marriages to non-Japanese spouses are recorded as marginal notations but not officially registered.) This means that anyone with such a registration can easily prove that he or she is of Japanese parentage and therefore entitled to all the rights of a Japanese citizen. Koseki registration is not, strictly speaking, a requirement for citizenship; anyone born in Japan to either a Japanese mother or a Japanese father may claim Japanese nationality. That said, establishing proof of parentage can be exceedingly difficult if one is not registered on a parent’s koseki.

The upshot is that in Japan, without proof of koseki registration (either an official copy of the document or an official extract)—one cannot obtain a passport so as to travel abroad, be legally married, or claim one’s legal rights as an heir. In essence, one is deprived of one’s rights as a citizen.

The unit of registration in this system is not the individual but the nuclear family, with each family registered under a single surname. Under Japanese law, the husband and wife must take the same surname, and in 96% of cases, they take the husband’s. Thus, in actual practice, the koseki is the husband’s, with the wife and children added on as household members. This system perpetuates a narrow and outdated concept of the family, and it has contributed greatly to the problem of non-registration.

Birth of a Social Issue

The problem of the mukosekisha received little attention until a few years ago. In 2014, the unregistered began to intrude on the public consciousness thanks to a series of stories in the news media, particularly the daily Asahi Shimbun and NHK (Japan Broadcasting Corp.). At that time, unregistered persons were denied such social services as enrollment in National Health Insurance, along with the right to obtain a driver’s license, a passport, and so forth.

In July 2014, the Ministry of Justice launched a survey to gauge the number and circumstances of unregistered persons in Japan. Such individuals are almost by definition difficult to identify, but as of October 10, 2017, the ministry had tallied 1,495. (The actual number is believed to be many times that.) Subsequently, 780 of those identified were able to obtain registration, but the other 715 remained in limbo. Almost half of those (49.2%) were children under school age.

The Ministry of Justice and some local authorities have taken some steps to mitigate the isolation of these mukosekisha by making it possible for them to register with their municipality as residents, to receive national health insurance coverage, neonatal checkups, immunizations, and childcare subsidies, and to enroll in daycare and public school. However, given the circumstances that typically attend non-registration (see below), we can assume that the majority remain unaware of their rights or unable to take advantage of them.

Falling Through the Cracks

How and why do people fall through the cracks of Japan’s family registration system?

When a child is born in Japan, the parents are required to inform the municipal government through submission of a shussei todoke, notification of birth. The information in that document—including the child’s gender and birthdate and basic information on the parents—is used to register the child on the family registry of the legal father (except in the rare instances in which the mother holds the koseki).

In most situations, this registration proceeds without a hitch. In Japan, prenatal and neonatal care is carefully monitored. Pregnant women are issued a health record book with a schedule for prenatal and neonatal examinations. The healthcare personnel responsible for delivering and examining the infant also assist the parents in registering their child. Even so, some parents clearly fail to do so.

In some instances, the problem can be attributed to social isolation or neglect. A July 8, 2014, front-page story in the Asahi Shimbun publicized the case of a child who was kept hidden at home, out of school, for 17 years.

In the majority of cases, however, the problem relates to the koseki system and the Civil Code’s outdated provisions regarding divorce and paternity. According to the Justice Ministry, 75.1% of the cases it has examined fall into this category.

The Problem of Presumed Paternity

Under Article 772, paragraph 1, of the Civil Code, a child conceived by a woman while she is married is presumed to be her husband’s child. This is known as the presumption of legitimacy. Because it can be difficult to prove exactly when a child was conceived, paragraph 2 states that any child born within 300 days of a previous marriage’s dissolution shall be deemed to have been conceived during that marriage. Herein lies a large part of the problem.

Let us consider two cases. In the first case, a woman leaves home, fleeing her abusive husband. She becomes attached to a man more worthy of her affections, they become intimate, and she gives birth to a child. Under Japanese law, if the child was conceived while she was still legally married to (albeit separated from) her husband, he is presumed to be the father. In the second case, a woman has been separated from her husband for some time, unable to secure a divorce. During the separation, she becomes intimate with another man. After the divorce finally comes through, she remarries and has a child by her new husband. If the child was born within 300 days (close to a year) of the divorce, then the former husband is deemed to be the father, even if it is clear that the new husband is the biological parent.

If the mother wishes to register the birth, she has no choice but to record the name of the legal father (the former or estranged husband) on the shussei todoke. If she enters the name of the biological father, the registration will be rejected. For a woman who has divorced or separated from her husband—particularly in cases of domestic violence—this creates a major dilemma. Anyone can use the public records to identify the child’s legal father, and an abusive husband or ex-husband can use them to track down his wife or former wife. In such instances, one can understand why a woman would hesitate to register her child’s birth.

In a full 50.9% of the cases reviewed by the Justice Ministry between July 2014 and October 2017, the unregistered child was born within 300 days of the divorce. Another 15.7% of the unregistered children were born during a marriage that has since dissolved, while 11.2% were born during an ongoing marriage..

One legal option open to women in the cases described above is to petition the family court and ask that it determine that no familial relationship exists between the former (or estranged) husband and the child. If the family court confirms that no relationship exists, then Article 772 is no longer applicable. However, to accomplish this the woman needs to prove that the couple were in a state of “de facto divorce” at the time the woman became pregnant. This can be extremely difficult if the former (or estranged) husband refuses to cooperate, or if the woman wants nothing more to do with him.

The Ministry of Justice ruled in June 2007 that a divorced woman who gives birth within 300 days after her divorce can submit a notification of birth that does not name her former husband as the father as long as she attaches a letter from a physician certifying that the child was conceived after the divorce became final. However, this would not help women like those described above, who become pregnant while separated but not yet legally divorced from their spouses.

South Korea’s Example

The UN Convention on the Rights of the Child (adopted in 1989), of which Japan is a signatory, states that “the child shall be registered immediately after birth.” This means that the Japanese government has an obligation to reform a system that gives rise to mukosekisha. To accomplish this and ensure prompt registration of each child born, Japan needs to revise the Civil Code, with its outdated and discriminatory provisions surrounding divorce and paternity.

To comply with the Convention on the Rights of the Child, Japan needs a system that “respect[s] the right of the child to preserve his or her identity, including . . . family relations” and guarantees the child a secure upbringing. In my view, the best way to accomplish this is to adopt the basic legal principle of designating the biological father as the legal father and to permit the mother to register the birth of a child under the biological father’s name without submitting to intrusive medical examinations or waiting for the courts to make a determination.

We can begin by revising Article 772, paragraph 1, of the Civil Code to say that a child born while the mother is married is presumed to be the husband’s child. A child born after a woman has remarried would thus be deemed the child of the current husband, thereby solving the dilemma of the woman in the first case.

At the same time, the law should recognize the right of the mother or the adult child to deny the paternity of the presumed father, rather than assign that right to the husband only, as at present (Articles 774 and 775). That would allow the woman in the second case to overturn the presumed paternity of her former husband by proving that he and the child are not biologically related and to have her current husband acknowledged as the legal father. It is simply unreasonable to deny the mother a say in the designation of her child’s father.

Japan’s current system is out of step with its own Constitution, which states that “in matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.” It is also out of sync with global trends. In other countries around the world, including East Asia, steps have been taken to reform antiquated family law. South Korea, which had a system similar to Japan’s, recognized the mother’s right to deny paternity in March 2005. In May 2007 it replaced the old family register with a personal registry system that records familial relationships on an individual basis. If South Korea can modernize its Civil Code, so can Japan. The fundamental answer to the problem of the mukosekisha is for Japan to follow South Korea’s example.