Recognition and legitimation
The impact of marriage on parenthood
By William Wetherall
First posted 1 January 2007
Last updated 18 July 2009
The 1899 Nationality Law included a provision for aliens to become Japanese through paternal or maternal recognition (ninchi) after birth. The formalities for recognition by a Japanese father or mother were specified in family laws. But the provision was dropped from the 1950 law. And the 1985 law permits nationality through recognition after birth only in conjunction with legitimation.
The 1985 Nationality Law implies, rather than specifies, that a child of a Japanese father and a non-Japanese mother can become Japanese at birth only if the couple are married under Japanese law before the child's birth -- or if, in accordance with the Family Registration Law, the father recognizes the child before it is born (taiji ninchi). There are no provisions for nationality through retroactive recognition of an illegitimate child, though nationality can be obtained through legitimation and recognition of a minor child.
A child who was born out of wedlock to a non-Japanese woman can become Japanese without naturalization if (1) the child is under 20 years of age, (2) one of its parents is Japanese, (3) its parents have married and recognize the child as theirs, and (4) the recognizing Japanese parent was Japanese at the time the child was born and is still Japanese (or was Japanese at the time of his or her death after marriage and recognition). Otherwise, the child would have to naturalize.
Japan's courts have ruled in numerous cases involving disputes between parents and bureaucrats over the interpretation of the time of recognition. The Nationality Law simply states that either parent of a child must be Japanese "at the time of its birth" (shussei no toki ni). This is usually taken to mean that marriage or fetal recognition must take place before the child's birth, but more loosely construed it can also mean that paternal recognition is acceptable within the brief period allowed for the filing of the child's birth certificate.
In one case, a girl born in Japan to a Filipino mother who was not married to her daughter's Japanese father requested confirmation of her right to acquire her father's Japanese nationality. The Supreme Court upheld lower court rejections of the request on the grounds that her father had failed to acknowledge his paternity before, or within a reasonable time after, her birth. The girl had acquired her mother's nationality at birth, but this had no bearing on the case. In the meantime, a younger sister, fathered by the same man, was duly registered as his daughter, and thereby became Japanese, because he had recognized her before her birth.
In April 2005, however, the Tokyo District Court ruled that it was unconstitutional not to grant Japanese nationality to the son of a Filipino woman not married to the boy's Japanese father, who continues to live with his Japanese family but participates in his son's upbringing. The boy was born in 1997 and the father did not recognize him until 1999. The court argued that it is unreasonable to base a child's nationality on the legal relationship of its parents, in an age when there are many kinds of families. Whether this judgment will stand in higher courts, and how it will effect the nationality status of other children in like circumstances, remains to be seen. It is at least encouraging that one court has attempted to eliminate another cause of discrimination.
Under the 1899 Nationality Law, acquisition of nationality by paternal recognition was possible after birth, whether or not the recognizing father or mother were married. The 1950 law provided for neither recognition after birth, nor for recognition in conjunction with marriage (legitimation).
1985 revisions included a new article (Article 3) allowing children to acquire nationality through legitimation and recognition after their birth and by their 20th birthday. In 2008, however, the 2008 Supreme Court ruled that the legitimation condition irrationally discriminated against such children and was therefore unconstitutional. The Diet quickly deleted the condition from Article 3 and made supplementary provisions for children effected by the court's decision to acquire Japanese nationality retroactively.
The 2009 revision was within the parameters of family law, as it affected only the conditions that a child could be registered in it's Japanese father's (or mother's) family register. The Civil Code, and following it the Family Register Law, continue to differentiate children of in-wedlock and out-of-wedlock statuses, and numerous acknowledgment issues also remain.
Acquisition through legitimation coupled with acknowledgement, after birth, became possible from 1985, but in 2008 the Supreme Court struck down the acknowledgement constraint. A revision effective from 2009 allows acquisition by post-birth acknowledgement alone, and retroactive measures facilitate acquisition for those who in the past had been acknowledged after birth and before turning 20. The acknowledgement condition remains unchanged from the 1985 law.