Protect rights of children by careful revision of law concerning paternity

A situation must be avoided in which children whose parents fail to register their births suffer disadvantages because they do not have a family register. The government should strengthen its efforts to protect the rights of children.

A subcommittee of the Legislative Council has decided on a draft outline for revising the Civil Code to include a review of the “presumption of legitimacy system,” which is used to presume the legal father of a child. The government aims to submit a bill to revise the Civil Code to the Diet by the end of this year.

The Civil Code stipulates that the legal father of a child born within 300 days of a couple’s divorce is the divorced husband. If a woman gives birth to the child of a new partner soon after divorce, the woman’s former husband is the legal father of the child on the family register. As a result, there have been many cases where women have not registered the births of their children, leaving the children without a family register.

The bill would create a provision that stipulates if a woman is remarried at the time of childbirth, her new husband would be the child’s legal father. This would establish a parent-child relationship in accordance with the actual situation in their lives and is expected to help reduce the number of unregistered children. It is hoped that the government will promptly proceed with the procedures to amend the law.

Without a family register, a person may face difficulties regarding employment, opening a bank account and inheritance, among other things, and may not be able to receive adequate administrative services. Children, who are not in any way at fault, should not have to face such difficulties.

In the case of couples who are not divorced, such a situation could also easily occur if a woman who has separated from her husband to escape domestic violence later has a child with a new partner.

The proposed revision would amend the “system of rebutting the presumption of legitimacy,” which allowed only a husband to claim a child is not his in family court, making it also possible for a wife or a child to claim that the wife’s new partner is the father of the child.

These measures will improve the legal parent-child relationship in a way that reflects the actual lives of the families, but there remains a possibility that a woman may not be able to make such a claim out of fear that her husband may find out where she lives and harm her.

In addition to the emotional strain of going through court proceedings, the financial burden of steps such as hiring a lawyer would also be significant.

The central and local governments, the Justice Ministry and courts should cooperate to improve support systems to ease the burden on wives and children, such as by expanding counseling services and facilitating divorce procedures.

The presumption of legitimacy is a system that has been kept intact since the Meiji era (1868-1912), but families have changed over time, and nowadays divorce and remarriage are not uncommon.

Advances in DNA testing technology have made it easier to objectively confirm biological relationships. The government is under pressure to also address assisted reproductive technology that involves sperm and egg donation as well as surrogate births, among other things.

As technology advances, complex problems arise. Against this backdrop, the issue of how to protect the family system must be considered.

— The original Japanese article appeared in The Yomiuri Shimbun on Feb. 5, 2022.