Issue:
April 2024 | Japan Media Review
Japan's family register system is a bureaucratic nightmare, and denies children their rights
On International Women's Day last month, 12 people filed a class-action suit with district courts in Tokyo and Sapporo to contest legal provisions that require married couples to have the same surname. In 2015 and 2021, the Supreme Court judged that the law mandating same names for married couples was constitutional, but in recent years, surveys have shown a marked increase in public support for allowing separate surnames. According to one, 87% of younger respondents supported optional separate names. More significantly, Keidanren, Japan's biggest business lobby, has come out for allowing separate names, while many regional assemblies have petitioned the central government to make the change. In fact, the Ministry of Justice recommended a revision to the Civil Code to allow separate surnames in 1996, and reportedly drafted a bill to make the revision a reality. But the legislature has never taken it up due to opposition from conservatives in the ruling Liberal Democratic Party [LDP], who claim that allowing couples to use separate surnames would undermine family unity.
An article about the lawsuit in the February 22 Asahi Shimbun explained how the plaintiffs – one married couple and five couples in common-law relationships – insist that being forced to change one's name due to marriage leads to a loss of "identity" and "personal dignity". The applicable laws – Civil Code 750 and article 74 of the Family Register Law – have no "necessity" or "rationale," they say, and violate Article 14 of the Constitution, which guarantees equality under the law. One of the plaintiffs’ lawyers told the Asahi that the purpose of similar suits in the past had been to urge the Diet to finally change the law. This time, she added, it might finally happen.
One of the couples joining the lawsuit, Yukari Uchiyama and Yukio Koike of Nagano Prefecture, have been together since 1991, according to the Asahi article. They have married and divorced three times. Although a married couple can use either spouse's name, in more than 95% of cases, couples choose the husband's name. Uchiyama wanted to keep her name, but she married Koike before giving birth to each of their children so their offspring would be deemed "legitimate" in their family register. After the birth, the couple would divorce and either Uchiyama or Koike would recover their birth name.
After a child is born in Japan, the parents fill out a birth report and take it to their local government office, which then records the child in the couple's family register (koseki). If the couple is married, the status of the child is referred to as the first, second, etc., son or daughter. If the couple is not married, the child is simply indicated by gender – male or female – in the mother's koseki without any reference to succession. Originally, this terminology was adopted for inheritance purposes, since, by law, an illegitimate heir was entitled to half the amount of inheritance that a legitimate heir was entitled to. In 2013, partially due to years of objections from the UN Human Rights Committee, the Civil Code was amended to eliminate any discrimination toward heirs, but the indication of legitimacy remains in the family register.
In a 2004 court case that presaged the change in the law, the plaintiffs were a common-law couple who worked for the city government of Musashino in Tokyo. Their daughter, a co-plaintiff, was 18 at the time. The couple argued that they did not legally marry because they felt that Japan's system of marriage makes for unequal partnerships, as shown by the same-name requirement and other provisions. They claimed that the resulting “illegitimate” label given to their daughter violated not only the constitution, but also international human rights treaties Japan had signed.
The court dismissed the complaint by saying that the couple and their daughter had no right to sue the central government, and that Nakano Ward, the other defendant in the case, could not "correct" the forms containing the alleged discriminatory terms because it was only carrying out the work of the central government. In other words, Nakano was only doing what it was told to do. However, in its opinion, the court said the terminology in the family register indicating illegitimacy violated the plaintiffs' right to privacy. Later, the justice ministry started dismantling the inheritance law and conducted a survey to gauge public opinion. So, while illegitimate heirs can now inherit the same portion of a legacy as legitimate heirs, the terminology of succession remains in the family register.
Since the succession terminology only makes sense in the context of inheritance, it would seem to follow that once the inheritance law was changed there was no reason to indicate the hierarchy of the children in the family register. But the terms' indication of legitimacy has a more important purpose, according to activists who are working to eliminate such indications in official documents - to prod prospective couples into legally marrying. There is a strong social stigma attached to children born out of wedlock, not to mention unmarried women who give birth. According to an article in the July 2023 issue of the business magazine President, the rate of children born out of wedlock in Japan between 1947 and 1983 was around 1%. The proportion then started to rise, and now stands at around 2.3%. In addition, a welfare ministry survey in 2003 found that among single mothers, 80% were divorced, 12% were widowed, and 6% had never married. In a similar survey conducted in 2021, the never-married figure rose to 11%.
Attitudes toward children born out of wedlock are changing, but Japan's rate of such births remains the lowest among OECD member countries. One reason is the family register, which codifies relationships within a family. A resident of Suginami Ward in Tokyo is currently suing the government for damages she suffered because of the indications of illegitimacy in her koseki. She has been with her common-law partner for 40 years, and in 1983 delivered the birth report for her child to the ward office without checking the box on the form marked "not legitimate". The office refused to accept it because the woman was not legally married and so should have checked the “not legitimate" box. In 1994, she attempted to deliver the same report to the ward office, which refused to process it. A year later, when she asked why no action had been taken, she was told that the office was not at liberty to disclose the reason "by government instruction". It wasn't until 2011 that she received an explanation – that the legal department of the Tokyo Municipal Government had told the mayor of Suginami Ward not to accept the birth report.
In effect, as the woman said in her letter to the court, the authorities denied the very existence of her child, making it difficult for the child to enrol in school and receive other public services that other citizens are entitled to. In addition, the legal division's action denied the act of childbirth, a violation of her rights as a parent, all to maintain the child's status of illegitimacy as stipulated in the Civil Code. It should be noted that indication of illegitimacy has been removed from residence cards (juminhyo), which identify individuals, but not from koseki and birth reports, which are related to families.
Another woman cited in the Suginami resident's letter to the court gave birth to her first child in April 2023. This woman is in a common-law relationship with the father of the child. They have not married due to the same-name stipulation. Before she gave birth, she explained the situation to the birth planning department at the clinic where she would have her baby and was told by a representative that children born to common-law relationships were legally "fatherless". The woman pointed out that her partner had already formally "acknowledged" (ninchi) his paternity of the child so that he would at least be listed in the mother’s koseki as the child’s father.
When she mentioned her situation in an online group that discussed discrimination against unmarried couples, an older woman said that if the prospective mother did not want her child described as "illegitimate," she could simply cross out the two boxes marked "legitimate" (chakushi) and “not legitimate" (chakushi nai) on the birth report when she submitted it to the local government office, which is required to accept it without comment. After she gave birth, her partner submitted the birth report on his own with the two boxes crossed out, but the official refused to accept it. Hearing of this, the woman called the office and explained that the parents were not required to fill out the legitimacy portion of the birth report if they didn't want to. The official checked her claim, apologized, and accepted the birth report.
The official didn't know about this exception, which is understandable. It is permitted because others in a similar situation have claimed the legitimacy indication is discriminatory. But because the indication is still printed on the birth report form, it still has the power to intimidate parents, which seems to be its only purpose. Consequently, the relevant authorities do not publicize the fact that parents can ignore the legitimacy boxes, even to their own employees.
The greatest threat to state-enforced illegitimacy status is the attitude of the public. In addition to showing how this has changed over the years, the President article looked at a Danish sperm bank that has an office in Japan, where domestic sperm bank services and fertility clinics only cater to married couples. According to the Danish sperm bank, half the women who seek its services in Japan are single and plan to have a child without marrying. The article goes on to point out that children of single parents in Europe are not treated differently from those of married parents, at least administratively, and that many single women want to have children on their own. In Japan, single mothers, whether divorced, widowed, or never married, constitute one of the more impoverished demographics, thus exacerbating the stigma of single parenthood. Public assistance for single mothers is limited compared to Europe. As a representative of the Danish sperm bank pointed out, the single Japanese women who inquire about its services are invariably well off.
The adoption of optional separate surnames for married couples in Japan would not eliminate state-enforced illegitimacy status, but it would probably lower the number of children identified by the state as illegitimate. One of the reasons Keidanren supports separate names is that it believes that allowing couples to keep their names will lead to more marriages and, presumably, more babies, so changing the law is seen as a minor corrective to Japan's low birth rate.
That is why some of the people who protest mandated same names for married couples see the ultimate fight as being against the family register system itself, an aspect of the argument that is overlooked by the media. The koseki was implemented during the Meiji Era in the late 19th century, mainly as a means of keeping tabs on households for tax and conscription purposes. Its hierarchical structure mimicked the emperor system, which saw the monarch as a father to all his subjects. Each koseki was headed by a male, with all the other members of the family arranged in descending order. Elements of the document have changed with the times, but the basic idea remains that the koseki is meaningless without this basic principle —supported by provisions for same-names and illegitimacy status. Japan is the only country in the world with such a system, which sees the family – not the individual – as the basic, irreducible unit of society. Until 2008, South Korea had the same system – a remnant of Japanese colonialism – but replaced it with one based on the individual.
Supporters of the koseki tend to think of it as a cultural touchstone, a perfect administrative tool unique to Japan, but in practical terms it is riddled with inconsistencies and exceptions. Advocates of maintaining the same-name system say it is important for guaranteeing the integrity of the family, but divorce rates in Japan are as high as they are in other countries that do not mandate same names. And divorce further complicates the so-called perfection of the koseki, since a child's status must be manipulated within the document after a divorce, especially if the former spouses marry others and start new families. For example, who gets to be "first son" when there are two? And how will the koseki adapt if Japan allows joint custody of children following a divorce, or when it legalizes same sex marriages?
In the end, the koseki represents not only the dominance of the family over the individual, but also the maintenance of arbitrary bureaucratic power at the expense of fairness and common sense.
Sources
Philip Brasor is a Tokyo-based writer who covers entertainment, the Japanese media, and money issues. He writes the Japan Media Watch column for the Number 1 Shimbun.
