Court recognizes 'right to be registered at birth' as a fundamental right

Justices call it an independent constitutional right not explicitly written in the charter

Constitutional Court Chief Justice Kim Sang-hwan and fellow justices take their seats ahead of a ruling on a constitutional complaint at the court in Jongno-gu, Seoul, on Thursday. [Yonhap]
Constitutional Court Chief Justice Kim Sang-hwan and fellow justices take their seats ahead of a ruling on a constitutional complaint at the court in Jongno-gu, Seoul, on Thursday. [Yonhap]

The Constitutional Court ruled Thursday that the National Assembly's failure to establish a birth registration system for foreign nationals born in South Korea is unconstitutional, affirming that all children born on Korean soil have the right to be registered under domestic law regardless of their nationality or immigration status.

In a unanimous decision by all nine justices, the court said it "confirms that the legislative omission — failing to provide for the domestic birth registration of foreign nationals born in the Republic of Korea — is unconstitutional." The ruling marks only the second time in the court's history that it has found the National Assembly guilty of a "genuine legislative omission," a legal term referring to a complete failure to legislate on a matter the Constitution requires, and the first such ruling in roughly 30 years.

The constitutional complaint was filed by A, a Vietnamese national living in South Korea without legal status, and his child B, who was born in the country. A and his wife C, B's mother, each entered Korea on non-professional employment (E-9) visas but overstayed and became undocumented. B was born in April 2019 but could not be registered under Korean law; the child was instead registered under Vietnamese law the following year. The family filed the constitutional complaint in 2022, arguing that the absence of a domestic birth registration system for foreign-born children violated their fundamental rights.

The court defined the "right to be registered at birth" as the right to have a child's basic birth information recorded by the state "at the earliest possible moment after birth, when the child can receive protection." It described the right as "an independent fundamental right not explicitly stated in the Constitution — one that demands the state provide a minimum safeguard enabling a child to freely develop their personality as a human being and to grow and develop healthily under the care of parents and family."

The court said this right "is a basic prerequisite for realizing general personality rights, and there is no basis for treating it differently depending on whether the child is a Korean national or a foreign national."

The court also said that "a child born in Korea who is excluded from birth registration for any reason — and whose existence therefore cannot be confirmed on paper in this country — is relatively more vulnerable to abuse and abandonment, and is more likely to become a target of crime because their identity remains hidden even when they are exposed to criminal acts," adding that "every child, regardless of nationality, is a precious life and an independent person in their own right."

In addition, the court said that "since children cannot choose the place or country of their birth, or their parents, the official recording of a child's existence by the state with jurisdiction over the place of birth is the minimum protection owed to that child."

The court accordingly held that the National Assembly has a constitutional obligation to establish a system allowing foreign nationals born in Korea to be registered under domestic law, irrespective of their nationality, immigration status, or whether they have been registered in their home country.

The Constitutional Court had earlier recognized the "right to be registered at birth" as an independent fundamental right in 2023. Thursday's ruling went further, making clear that the right extends to foreign children born in Korea regardless of whether they are Korean nationals.

The decision is only the second time the court has found a genuine legislative omission unconstitutional — that is, a case where the National Assembly failed entirely to legislate on a matter it was constitutionally required to address. The first such ruling came in 1994, involving the government's prolonged failure to enact compensation legislation for the seizure of private railway company assets, making Thursday's decision the first of its kind in roughly 30 years.


yg@heraldcorp.com