BIRTH REGISTRATION IN THE BEST INTEREST OF THE CHILD?

By STIJN CORNELIS VAN HUIS (August 2019)

In recent years, as a result of successful lobying by child-focused organisations, children’s rights have gained prominence in international policies – including every child’s right on a legal identity. A 2015 Unicef report, commissioned to support EU-funded work on birth registration in the South Asia and Pacific region, identified birth registration as “a foundation right, meaning that birth registration can both directly and indirectly impact children’s enjoyment of their rights with regard to protection, nationality, access to social and health services, and education”.[1] In 2014 during the run up to the European Parliament (EP) election, a coalition of 18 children’s rights organisations (including Unicef) partook in a campaign  to draw support among EP members for the Child’s Rights Manifesto. As a result, more than 100 EP members have declared their commitment to ensure children’s rights are promoted, protected and fulfilled across the EU’s work – including in EU aid for developing countries.[2] December 2014 the EP established the Intergroup on Children’s Rights with the aim to ensure that the best interest of the child is taken into account in EU internal and external action. The UN, in its Development Agenda beyond 2015, has made birth registration one of the Sustainable Development Goals (SDGs), which commits its members to: ‘by 2030, provide legal identity for all, including birth registration’ (SDG #16.9).

Basic statistics illustrate how ambitious SDG #16.9 is. Unicef has estimated that in the East Asia and Pacific region 135 million children under the age of five years do not possess a birth certificate (data from 2013).[3] This despite the fact that all countries are parties to the Convention on the Rights of the Child (CRC) and have committed themselves to Arts. 7 and 8 that state that a child shall be registered immediately after birth and has the right from birth to a name and a nationality. In Indonesia birth registration numbers are especially telling. Unicef estimates a birth registration rate in Indonesia of 66.6 percent, meaning that one-third of its more than 80 million children do not possess a birth certificate. The Indonesian Commission on Child Protection puts this number much higher and estimates (in 2015) that around half of the children in Indonesia do not possess a birth certificate.[4] A 2015 policy paper of the Center of Global Development (CGD) mentions a rate of 47 percent.[5] It is therefore sensible to say that in Indonesia alone overdue birth registration concerns between 27 million to 40 million children. To overcome such a massive backlog in birth registration would be a huge challenge for any civil registration system in the world, let alone for a country as Indonesia in which birth registration involves strong cultural and religious sensitivities.

Cultural issues with registration of illegitimate and unrecognized children

Marriage is the norm in Indonesia and pre-marital and extra-marital sex taboo, making birth registration potentially stigmatizing for parents and children. As the parental relationship into which the child is born is laden with legal, religious and cultural meanings and consequences, Indonesian parents do not consider birth registration as a neutral administrative act, but, depending on their marital situation, as an act which may recognize, reject or unveil the relationship between the mother, father and child. Birth registration is directly linked to filiation of the child, which in turn relates to questions whether the child was born into, or the result of, a registered valid marriage, an unregistered but religiously valid marriage, an informal polygamous marriage, a presumed but void marriage, an extra-marital relationship, an adulterous relationship, an incestuous relationship, or adoption. Additionally, there are foundlings whose parents are unknown.

When the rules of filiation of a child in the 1974 Marriage Law would be strictly applied, many instances of birth registration  – e.g. those by parents living in informal marriages and single mothers – would result in a status of ‘illegitimate child’– which is culturally shameful and religiously a major sin.[6] It is hardly surprising that many parents consider such status not to be in the best interest of their child at all and choose not to register their child’s birth unless employers or educational institutions require them to do so. Many will seek for civil registration officers or judges who are willing to ‘fix’ the ‘illegitimate’ status of their child.[7]

Those parents get moral support from the Indonesian Commission for the Protection of Children, which has stated that lack of differentiation between children born into a valid but unregistered marriage, children born outside marriage, and children born from adultery, has led to harmful stigmatization of children born into religiously valid but legally informal marriages (nikah sirri).[8] The 2015 CGD paper mentioned earlier opposes any registration of children into the categories legitimate and illegitimate and casts this as discriminatory to children.

Legislative reforms, however, are unlikely as religious sensitivities have hitherto cast any reform of the 1974 Marriage Law infeasible.[9] I therefore have argued elsewhere that as regards family law reforms in Indonesia it is more realistic to focus on the possibilities for change that the current legal regime offers.[10] As regards birth registration such an assessment requires an analysis of the development of the legal status of children born into or as the result of informal marriages and non-marital relationships and the effects these developments have on birth registration practices and Indonesia’s civil registration system as a whole. The proposed research will attempt to make such an assessment and will build on the legal analysis Euis Nurlaelawati and I have made on the rules for filiation in Indonesia.[11]

Legal developments with regard to filiation of children in Indonesia

Although birth registration itself is a pretty straightforward act, the regulation of birth registration- related issues, such as acknowledgment, legitimization and filiation of a child, is not. In the Indonesian plural-legal context in which different systems of law apply to persons of different religious affiliation, filiation of a child is a complex issue, and, because of cultural and religious sensitivities involved, a very thorny one.[12] According to the colonial Civil Code fathers have the legal possibility to acknowledge a child, and when this acknowledgment takes place with the consent of the mother and in the framework of a legal marriage, such acknowledgment may legitimize a pre-marital child. In case of an informal marriage the marriage needs to be validated by court first – in case of Muslims by an Islamic court applying Islamic rules. The 2006 Population Registration law has made legitimization of a child conditional on religious norms, as it stipulates that civil registration offices must take the religion of the child into consideration in decisions of validation of a marriage, acknowledgment of a child, and legitimization of a child and that decisions in those matters shall not be contrary to religious norms. Little is known about how strict civil registration offices and general and Islamic courts apply this condition in practice.

At the same time, a Constitutional Court judgment changed the legal mores considerably. Firstly, in a judgment of 2012 the court overruled Art. 43 of the Marriage Law and ruled that children born out of wedlock did not only have a civil relationship with their mother, but, after a biological relationship has been established by the court, also a civil relationship with their biological father. The exact nature of this civil relationship remains to be specified, but seems to develop in a quite different direction from that of a father and his legitimate child. Hypothetically, the possibility to be registered as the biological father of a child could have made birth registration more acceptable to couples in informal marriages who seek acknowledgment of the father’s status as lawful parent. This research will look into the development of the newborn legal category of the ‘biological father’ and the potential consequences for birth registration.

International Human Rights law plays an important role as well. According to the CRC all government institutions must give primacy to the rights and the best interest of the child in their decisions concerning children. The 2002 Child Protection Law has endorsed this  principle, which appears to have increased the discretionary powers of judges in child-related family law cases.[13] Art. 7 states:  “Every child has the right to know his parents and to be brought up and cared for by his own parents”, which, taken together with the abovementioned Constitutional Court judgment, potentially may have increased  the scope for judges to recognize certain forms of non-marital parenthood.

It is important to note that an increased judicial discretion for judges in deciding cases concerning the filiation of a child may change legal practice in contradictory ways: It may lead to rebuttal of conservative provisions vested in religious doctrines but may also lead to conservative interpretations of the best interest of the child that put emphasis on the child’s interest to grow up according to the religious norms of his community.[14]

Evidence-informed policy-making

While governmental and non-governmental organizations alike push for birth registration, little is known about how overdue birth registration is carried out in practice and what the effects of this implementation are on the well-being of children and the functioning of the civil registration system as a whole. In a 2014 report about the effects of birth registration PLAN International recognizes that while there is a large body of literature which is focused on justifying the case for birth registration and on identifying access barriers to birth registration, very little empirical knowledge-based literature exists about the actual effects of birth registration. Based on own research the report concludes that ‘the relationship between birth registration and access to other children’s rights and services is complex and context specific’ and recommends that birth registration initiatives ‘should be integrated with other measures to fulfil children’s rights’ and be ‘part of a comprehensive Civil Registration of Vital Statistics (CRVS) system’.[15] In other words, PLAN International warns that the effects of child registration are uncertain and that a rushed implementation of SDG # 16.9 may in effect work against the goal of an orderly civil registration system. In a similar fashion, I would recommend the Government of Indonesia to formulate clear regulations about the position of the father of children born into an unregistered marriage and ‘biological fathers’ first (can these fathers be mentioned in the birth certificate or not?), before rushing through the colossal job of registering all children in Indonesia. As in the Indonesian context, it is the right of the child, and in many cases, in the child’s best interests, that the father is mentioned in the child’s birth certificate. (***)

REFERENCE:

[1] UNICEF 2015. Unequal at Birth. Disparities in Birth Registration in East Asia and the Pacific. Bangkok: Unicef EAPRO.

[2] http://www.childrightsmanifesto.eu.

[3] UNICEF 2013, Every Child’s Birth Right: Inequities and Trends in Birth Registration, pp. 6.

[4] https://m.tempo.co/read/news/2015/05/01/063662608/separuh-anak-indonesia-tidak-memiliki-akte-kelahiran.

[5] Cate Sumner 2015. Indonesia’s Missing Millions: Erasing Discrimination in Birth Certification in Indonesia. CGD Policy paper 064. Washington DC: Center for Global Development, pp. 6.

[6] Bedner, A.W., and Huis, S.C. van 2010. Plurality of marriage law and marriage registration for Muslims in Indonesia: a plea for pragmatism. Utrecht Law Review, 6 (2), pp. 175 – 191 (2010). Butt, L, Ball, J., and Beazley, H. 2016. “False papers and family fictions: household responses to ‘gift children’ born to Indonesian women during transnational migration”. Citizenship Studies. 20 (6-7), pp. 795-810. Butt, L., and Munro, J. 2007. “Rebel girls? Unplanned pregnancy and colonialism in highlands Papua, Indonesia”. Culture, Health &; Sexuality. 9 (6), pp. 585-598.

[7] The little research done about this subject suggests that many registrars are indeed willing to accept and provide falsified identity papers. A registrar in Selong estimated that 30 percent of the birth certificates produced there did not reflect the real social relationship. Source:   Butt, L, Ball, J., and Beazley, H. 2016, pp 806. See also: Huis, van, S.C., and T.D. Wirastri. 2012. “Muslim Marriage Registration in Indonesia: Revised Marriage Registration Laws Cannot Overcome Compliance Flaws”. Australian Journal of Asian Law. 13 (1).

[8] Antara News “illegitimate-child-rights-and-its-problems-in-indonesia” 29 February 2012 http://www.antaranews.com/en/news/80263/illegitimate-child-rights-and-its-problems-in-indonesia

[9] Cammack, M., .Bedner, A.W. and Huis, S.C. van 2015. “Democracy, Human Rights, and Islamic

Family Law in Post-Soeharto Indonesia”, New Middle Eastern Studies, 5,

<http://www.brismes.ac.uk/nmes/archives/1413>

[10] Huis, S. C. van. 2015. Islamic courts and women’s divorce rights in Indonesia: the cases of Cianjur and Bulukumba. Meijersreeks, MI-251. Leiden: Leiden University [published dissertation].

[11] Nurlaelawati, E. and Huis, S.C. van (forthcoming), “Rules for filiation in Indonesia” , report compiled in the framework of the project Establishing filiation: Towards a social definition of the family in Islamic and Middle Eastern Law?, led by Nadjma Yassari  at the Max Planck Institute  for Comparative and International Private Law in Hamburg.

[12] Butt L., and Ball J. 2016. “Birth registration in Southeast Asia: a child’s foundation right?” Asian Population Studies, pp. 1-3.

[13] Euis Nurlaelawati 2017, ‘Indonesia’, in: Nadjma Yassari, Lena-Maria Möller and Imen Gallala-Arndt (eds.) Parental Care and the Best Interest of the Child in Muslim Countries. The Hague: Asser Press, pp. 63-80.

[14] Imen Gallala-Arndt, ‘The Impact of Religion in Interreligious Custody Disputes: Middle Eastern and Southeast Asian Approaches’, The American Journal of Comparative Law, Vol 63, 2015, pp. 829-858. Nadjma Yassari, Lena-Maria Möller and Imen Gallala-Arndt 2017. Parental Care and the Best Interest of the Child in Muslim Countries. The Hague: Asser Press.

[15] PLAN International 2014. Birth Registration and Children’s Rights. A Complex Story. Executive Summary, pp. 23.