Constitutional Court Rules Foreign-Born Children in Korea Have Right to Birth Registration

The Constitutional Court has ruled that the lack of a system for registering the births of foreign children born in South Korea violates the constitution. This marks the second time the court has confirmed the unconstitutionality of the National Assembly's legislative inaction since its establishment, and it comes nearly 30 years after the first such ruling.

On August 27, the court unanimously decided in a constitutional complaint filed by a Vietnamese national, referred to as A, and their child, B, stating, "The legislative inaction regarding the birth registration of foreigners born in South Korea is unconstitutional."

The court determined that foreign children born in South Korea have the right to be registered at birth, regardless of their nationality or residency status. It also recognized the government's obligation to establish a system that effectively guarantees this right.

A entered South Korea in 2008 under a non-professional employment visa (E-9) but became undocumented after overstaying their visa. A and their spouse gave birth to B in April 2019 but were unable to register the birth under South Korean law. B was registered in March of the following year according to Vietnamese law. They filed a constitutional complaint in February 2022, claiming their fundamental rights were violated due to the lack of a relevant system.

The court defined the right to immediate birth registration as the child's entitlement to have the state manage essential birth-related information as soon as possible, emphasizing that while not explicitly stated in the constitution, it is an independent fundamental right necessary for the child's personality development and healthy growth.

The court stated, "All children, regardless of nationality, are precious lives and independent persons. Officially recording their existence by the state where they are born is a minimum protective measure for children." It also noted that children excluded from birth registration are at a higher risk of becoming targets of abuse, neglect, or other crimes due to their lack of official recognition.

Currently, only South Korean citizens can register their identities in the family relationship register. Foreign registration requires prior birth registration and nationality confirmation from the home country, making immediate registration after birth difficult. Children whose parents are undocumented or face challenges in registering under their home country's laws may be unable to register as foreigners at all.

The court clarified that a universal birth registration system does not grant South Korean nationality or residency status to foreign children. It also ordered that safeguards be put in place to prevent birth registration from being obstructed due to lack of residency status or leading to enforcement actions under immigration laws.

However, the court dismissed A's claims, stating that they did not specifically assert a violation of their fundamental rights. The court also dismissed claims related to the Basic Education Act and the Enforcement Decree of the Elementary and Secondary Education Act, citing a lack of direct or potential violation of fundamental rights.

This decision marks the second instance in which the Constitutional Court has confirmed the unconstitutionality of legislative inaction, following a 1994 ruling regarding compensation for property expropriation by a private railway company. The court reiterated that the right to immediate birth registration, recognized in 2023, is equally applicable to foreign children born in South Korea.