Constitutional Court Rules Birth Registration Rights for Foreign Children Unconstitutional

In a landmark decision, South Korea's Constitutional Court has ruled that the current lack of a legal guarantee for registering foreign children born within the country is unconstitutional. The court strongly affirmed the unconditional right to birth registration for all children, regardless of their parents' nationality or immigration status.

The unanimous decision came in response to a constitutional petition filed by a Vietnamese national and his daughter. The father, who entered Korea in 2008 and remained as an undocumented migrant after his visa expired, had his daughter born in Korea in 2019. However, her birth could not be registered in Korea, and she later received Vietnamese nationality.

Korea's existing system allows for birth registration on the Family Relations Register, but this right is currently limited to Korean nationals. For foreign children born in Korea, their parents must first register the birth in their home country, a process that makes immediate registration in Korea virtually impossible.

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Considering that children are unable to select their nation, parents or location of birth, having the state with jurisdiction at the place of birth officially record their existence as soon as they are born is the minimum protection to which they are entitled as human beings.

The Constitutional Court recognized an immediate right to birth registration as a fundamental human right. The court stated, "Considering that children are unable to select their nation, parents or location of birth, having the state with jurisdiction at the place of birth officially record their existence as soon as they are born is the minimum protection to which they are entitled as human beings."

The court also noted recommendations from the UN Committee on the Rights of the Child for Korea to adopt universal birth registration. It stressed the state's legislative obligation to codify this right, ensuring that foreign nationals born in Korea can register their births under Korean law, irrespective of their nationality, immigration status, or whether their birth has been registered elsewhere. The court clarified that universal birth registration is a procedural step and does not imply condoning undocumented migrants.

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The state has a legislative obligation to explicitly codify this right so that foreign nationals born in Korea can register their births under Korean law, regardless of their nationality or immigration status, and regardless of whether their births have been registered in their countries of origin.