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Friday, April 20, 2007
Archaic paternity-registry law eludes change
LDP digs in heels against biological realities
By MASAMI ITO
A Kagawa Prefecture couple, both happily married and enjoying raising their son born in February, are in a dilemma because of an archaic law that assigns paternity to the woman's ex-husband, even though he is not the biological father of the child.
Under the 1898 Civil Law, the couple, who wish to remain anonymous, can only have their child registered as fathered by the former husband because the baby was born within 300 days of the wife's divorce.
She met her new husband, who was divorced, in 2003 at the convenience store where they both worked part-time. Their friendship blossomed and he became her confidant, listening to her talk about her marital problems.
She told him that her husband was abusive and a gambler, who bet on anything from slot machines to mah-jongg to boat-racing. Three months into their marriage, he quit his job and gambling became his only source of income. It had been years since they had had any sexual contact, she said.
In fall 2005, she and her coworker became lovers.
The woman discovered last June that she was pregnant. In September, her divorce was finalized.
"After a long period of difficult times, we finally found happiness -- and we thought we were finally able to start a family," the 36-year-old new husband said.
But then the 109-year-old Civil Law got in the way.
According to Article 772, a baby born within 300 days of finalization of the parents' divorce is presumed to be fathered by the former husband and must be placed on his family register.
Should the wife remarry and maintain custody of the child, she and her new husband must press a family court to officially rule that the new husband is the paternal father, and thus the child should be registered under his name.
The Kagawa couple decided not to have their baby registered at all, in order to avoid having the ex-husband initially listed as the father. But without official registration, the child will not be able to get various official documents, including a passport.
The new husband said, "I know (our relationship) was legally wrong (because she was married to another man). But is this the social penalty we have to pay?"
To help people in this predicament, the ruling Liberal Democratic Party and New Komeito drafted a bill that would allow the names of children in this situation to be placed on their biological fathers' registers.
However, conservative LDP members are trying to kill the bill. They have already succeeded in having it put on the back burner, making submission during the current Diet session unlikely. One of their main arguments, apparently, is that the 1898 law serves as a disincentive to infidelity.
"The original purpose of Article 772 was to stabilize the children's status," said Kaori Maruya of New Komeito. "But times have changed . . . and now the law has become a barrier instead."
When the Civil Law was enacted in 1898, paternity could not be proven scientifically. In order to "presume" paternity, pregnancies were estimated to last about 300 days, and it was expected that a woman would not begin a sexual relationship with another man until after her divorce was finalized.
DNA testing and other modern advances in science have foreclosed on such obsolete presumptions of biological fatherhood, Maruya said.
The proposed legislation offers help but only in two very limited situations.
For women who get pregnant after divorcing and give birth within 300 days of the divorce, they will be able to register the child under the biological father if they submit to their local City Hall medical documents proving the pregnancy came after the divorce.
The other situation is when the woman, regardless of whether the pregnancy was before or after the divorce, gives birth within 300 days of the divorce and marries the biological father. In this case, the mother must first submit either documents from the ex-husband declaring the child is not his, or if this is not possible, documents to detail why this is the case, such as the ex is incarcerated, missing or an instigator of domestic violence. In addition, DNA test results that scientifically prove the second husband is the father must be provided.
In this situation, it is assumed the woman will marry the biological father of the child and does not address cases in which the parents do not wed.
"This is a bill that is good for everyone -- the ex-husband, the parents and the child," Maruya said. "And (the bill) matches the demand of the times."
Lawmakers opposing the bill claim it encourages extramarital affairs and will ruin the traditional family unit.
"I believe that Article 772, which deems the husband as the father of the child conceived during the marriage, is still rational," LDP lawmaker Tomomi Inada reckoned. "It is common sense that the husband be presumed as the father."
However, both critics and supporters of the bill point out that most of the cases in conflict with Article 772 are couples who are not happily married -- including cases of domestic violence -- and it is simply their legal situation that they are married.
"That may be the reality, but normally things happen in order -- you get divorced and then you conceive the child of your next partner," Inada figured, adding that those women who are suffering terrible marriages should turn to the family court.
"If we simply turn to DNA testing, this could create a trend in which a woman can become pregnant with another man's child if she is in the middle of filing for a divorce," she said.
Inada said the bill should be scrapped and attention should focus on how to make the system better -- like making divorce procedures quicker and easier.
Divorces were extremely rare in 1898. But in the 21st century, as women become more empowered and arranged marriages fall by the wayside, divorces are on a steady climb, and many, if not initially mutually consensual, can take months if not years to finalize, during which time couples often become even more estranged, especially if they have to go to court.
Meanwhile, to help nonregistered children, the Health, Labor and Welfare Ministry last month issued an ordinance to municipal governments to enable such children to receive state benefits, including child-support and welfare allowances.
The Justice Ministry also announced earlier this month that it will issue an ordinance to all regional Legal Affairs Bureaus to accept birth registrations from people if they have medical proof that the woman became pregnant after her divorce and that the ex-husband is not the biological father.
But for the Kagawa woman, whose pregnancy began before her divorce was finalized -- which happens in most cases involving conflicts over the paternity registry -- her child cannot be put on the biological father's register.
"What Justice Minister (Jinei) Nagase and the LDP lawmakers are saying is full of contradictions," the child's father said. "They say people should value and protect the family. That is what I'm trying to do -- value and protect my new family -- but (the law) isn't letting me."
According to Masayuki Tanamura, a professor at Waseda University who specializes in the Civil Law, there were about 4,100 cases of couples affected by the 300-day rule in family courts in 2005. The Justice Ministry's notification will only help about 10 percent of them, he said.
"The Justice Ministry's notification is a step forward, but it is still much too narrow," Tanamura said. Article 772 "is not compatible with the reality of the situation. In an era in which the number of divorces and remarriages has increased . . . the rule is no longer rational."
Tanamura said the LDP lawmakers who oppose the bill are presenting arguments that are "off the mark."
"The bill is not about questioning the fundamental character of a family or encouraging illicit affairs," Tanamura said. Article 772 "is about determining the parents of the child as quickly as possible for (the child's) happiness. If the adults want to argue over infidelity, that is what should be taken to court."
The new husband in Kagawa has a new job. From 3 a.m. to 5 or 6 p.m. everyday, he works in delivery and sales at a major bakery. Despite his long days, he said he will continue to fight the system until something is done for his child.
"The children born into this world are completely blameless and should not have to suffer" under this old Civil Law, he said.