Constitutional Court: "Allowing Only Biological Mothers to Register Children Born Out of Wedlock Is Unconstitutional"… "Law Must Be Amended"

Provisional Application of Constitutional Incompatibility Decision

The Constitutional Court has ruled that the provision in the Family Relations Registration Act, which stipulates that only the birth mother can register the birth of an illegitimate child born to a married woman and a man other than her husband, is unconstitutional.

However, to prevent confusion that could arise from a simple declaration of unconstitutionality, the Court issued a constitutional discordance decision, temporarily maintaining the law's effect until it is amended by May 2025.

Constitutional Court of Korea, Jaedong, Jongno-gu, Seoul.
Photo by Choi Seok-jin

According to the legal community on the 30th, the Constitutional Court recently issued a unanimous constitutional discordance decision on Article 46, Paragraph 2, which requires the birth mother to register the birth of an illegitimate child born to a married woman, and Articles 57, Paragraphs 1 and 2, which only allow the birth father to register the birth in extremely exceptional cases, in a constitutional complaint filed by illegitimate children and their birth fathers. However, the Court dismissed the birth fathers' claims by an 8 (dismissal) to 1 (acceptance) vote.

A constitutional discordance decision, a type of broad unconstitutionality ruling, is a decision by the Constitutional Court that recognizes the unconstitutionality of a legal provision but temporarily maintains its effect to prevent confusion that would arise if the provision were immediately invalidated and to allow the National Assembly to enact substitute legislation. In this case, the Court set the deadline for the law's amendment as May 31, 2025.

First, through this decision, the Court clarified that the "right to be registered immediately after birth" is an independent fundamental right guaranteed by the Constitution, possessing the characteristics of both a freedom right and a social right.

The Court stated, "Birth registration is an act requiring the recording of facts related to a person's birth in the public register of family relations," adding, "Birth registration plays an important role as the first step in expressing an individual's personality and as a premise for forming personality. If birth registration is not done immediately after birth, a child who lacks the capacity to act independently may be completely deprived of the opportunity to form such relationships."

It further noted, "'The right to be registered immediately after birth' is the right to have the state manage basic information related to the child's birth at the earliest possible time after birth so that the child can freely express their personality as a human being and have minimum protective measures to grow and develop healthily under the protection of parents and family."

The Court found the basis for this right in Article 10 of the Constitution, which guarantees human dignity and the pursuit of happiness; Article 34, Paragraph 1, which guarantees the right to a humane life; and Article 36, Paragraph 1, which guarantees family life.

Regarding the provisions in question, the Court judged, "They exceed the limits of legislative discretion and cannot be seen as effectively guaranteeing the right to birth registration. Therefore, they infringe upon the applicants' 'right to be registered immediately after birth,' who are illegitimate children born to a married woman and a man other than her husband."

Under the current law, an illegitimate child is presumed to be the legitimate child of the mother's husband, so the birth father cannot immediately register the child as his own. The birth mother is unlikely to fulfill the reporting obligation, risking that her husband might easily discover her extramarital affair while the marriage is still intact. Although prosecutors or local government heads can register the birth under certain conditions, this is not mandatory and is deemed insufficient to protect illegitimate children.

However, the Court held that these provisions do not violate the birth fathers' right to equality. Unlike the birth mother, whose blood relationship is recognized by childbirth itself, the birth father may need to verify the blood relationship with the child and may not even be aware of the birth, which constitutes a reasonable basis for differentiation. Justice Lee Seon-ae dissented, arguing that the provisions infringe on the birth fathers' freedom of family life and should be declared unconstitutional with a constitutional discordance decision.