National / Media | MEDIA MIX

Without an official father, kids can be stateless

by Philip Brasor

On Nov. 29, the Kobe District Court dismissed a suit against the state filed by a woman in her 60s who claimed that the law that allows only men to deny paternity of a child is unconstitutional, since it discriminates against women. She said the law meant she was unable to register her daughter as the child of her second partner, because the law presumed her estranged husband was the father. The judge explained his decision by saying the law in question “represents a compromise between the need to match biological and legal fathers, and ensuring stable paternal relations by determining them promptly.”

In other words, it makes the government’s job easier, and the government has the final say in deciding who the father of a child is. It also implies that women can’t be trusted.

In an interview that appeared in the Nov. 15 Mainichi Shimbun, Masataka Endo, one of the leading experts on Japan’s koseki (family register) system, which is what was at issue in the Kobe case, pointed out that the koseki’s main function is “moralistic” in that it designates the Emperor’s subjects, sets the parameters of an individual’s family and defines who is Japanese. It has no practical purpose — it cannot be used for census-taking or identification — but rather positions a person in a “virtuous line of descent,” thus unifying the nation. This concept of “pure blood” Japanese is a “legal fiction” that is “out of step with current realities,” Endo says. And yet the koseki is deemed irreplaceable, and so by extension poses a serious problem for the minority of Japanese who don’t have them.

Masae Ido has made a career out of figuring out ways for people without koseki to get them. As a former reporter and Diet lawmaker, the controversial Ido, who has written two books on the subject of mukoseki-sha (people without koseki), understands that the media needs to publicize her work if it is to make any sort of difference, but the press tends to find koseki an arcane topic, unless it involves high-profile individuals, such as former Democratic Party President Renho, whose nationality was questioned last year.

Moreover, mukoseki-sha exist at the margins of society, so the general public doesn’t care about them. This apathy, born of prejudice since most mukoseki-sha are seen as being the products of broken homes, makes them even more reluctant to come out into the open and solve their problems, which, as Ido points out, are bureaucratic in nature, even if many believe it has something to do with character.

The greatest myth the media has perpetrated with regard to mukoseki-sha is that they cannot participate in society. They are told that without a koseki they cannot access to social services or gain employment or get married. In her writing and interviews Ido has tried to disabuse the media and the public of these notions. After all, foreign residents don’t have koseki, and they belong to national health insurance and pension plans, hold jobs and attend public schools. As long as you have a jūminhyō (certificate of residence), you can receive social services, and you don’t need a koseki to get a jūminhyō, though some local governments may say you can’t.

There are drawbacks to not having a koseki. The government won’t issue you a passport, for one. But Ido has successfully helped mukoseki-sha legally gain koseki, and in many of these cases the reason they didn’t have koseki is the issue of paternity.

The main instrument of the government’s control over paternity is Article 772 of the Civil Code, which states that a child born to a woman within 300 days of the finalization of her divorce is deemed to be the issue of her ex-husband, since it is possible they could have had sex on the eve of their divorce. Ido understood this situation firsthand. She had been separated from her husband for a long time before finally getting a divorce and then marrying a different man. She got pregnant by her new husband and the baby was born prematurely, before the 300-day cutoff point. When she brought the birth report to her local city hall to get her child a koseki, the clerk rejected the report because it had the name of her new husband in the “father” space.

In order for the real father to be confirmed as such by the authorities, she would have had to ask her previous husband to disavow his own paternity, but she had no desire to communicate with him, so she sued her present husband to “acknowledge paternity” (ninchi chōtei) of the child. This legal recourse is usually taken by women who want the fathers of children born out of wedlock to confirm their responsibility. She even went to the justice ministry and presented her scheme to them. At first they seemed puzzled but eventually agreed that it was legal and, in fact, encouraged her to file the suit.

During the first court session, the judge expressed doubt about the suit since “paternity is determined by the state,” and in this case he was being asked to take her word that her husband was the father. (The husband, for obvious reasons, did not put up a defense.) Eventually, the judge ruled in her favor, creating a precedent that the justice ministry has promoted. Unfortunately, the media hasn’t. Since then, Ido has helped more than 1,000 people gain koseki using similar kinds of legal schemes.

As she told the business magazine, Toyo Keizai, in March 2016, “There are many reasons why a child does not have a koseki. In some cases, the parents’ financial situation or environment prevented them from submitting a birth report, but that’s not a justification for depriving a person of a koseki. These children are being neglected and abandoned by society and the state.”

The fact that Ido has to jump through legal hoops in order to secure justice for those who seek her help proves how unfair Japanese family law is, and while she continues to assist people who don’t have koseki get them, she knows that it would be better to change the laws so that women have as much right as men to determine the paternity of their children, even if that means getting rid of the koseki altogether.