While researching this week’s Media Mix about figure skater Miki Ando and the upcoming Supreme Court decision on the constitutionality of the Inheritance Law as it applies to children born out of wedlock, we tried to find out if writer Bunmei Sato had written anything on the subject since he’s probably Japan’s most informed expert on the koseki, or family register system. We were shocked to learn that Sato died in early 2011. We interviewed him once for an article we wrote about the koseki system for Japan Quarterly in 1996, and even afterwards whenever we covered the topic we would contact him for clarifications.

Here is the article in question, which should provide ample background for next week’s Media Mix. Actually, not much has changed since the article was written, though it seems likely that the Supreme Court will find the institutionalized discrimination of illegitimate children unconstitutional when they make their ruling this fall.

The Value of a Family
by Masako Tsubuku & Philip Brasor
(from the July-September 1996 issue of Japan Quarterly)

On Christmas Eve 1990, Yukimi Akiyama gave birth to a daughter, whom she and her partner, Akihito Yawata, named Moyu. Shortly thereafter they reported the birth to their local government office so that Moyu could receive health insurance and other services. They did not, however, record the child’s name in a family register, which is normally done at the same time, because they are opposed to Japan’s family registration system, called the koseki. Although Akiyama and Yawata had exchanged vows in a Christian ceremony, they had never reported their union to the authorities, since all marriages in Japan are recorded in family registers.

In 1992, Akiyama and 12 other women whose children did not have koseki applied for passports for their children at the Tokyo Metropolitan Passport Office. The office rejected the applications, saying that koseki were required as it was the document they used to confirm Japanese nationality. When the parents protested, the officials said they were only following the Passport Law, which is administered by the Ministry of Foreign Affairs.

“So we went to the Ministry of Foreign Affairs and met with the chief of the passport section,” Yawata says. “He told us the same thing: Within the framework of the current Passport Law, there is no way they can issue a passport without a koseki. We reminded him that the Constitution guarantees all citizens the right to leave the country. In the end, he said he’d see if he could issue an alternative travel document.”

The mothers also went to the Ministry of Justice to see whether they could obtain Certificates of Nationality for their children. Because the koseki is only written in Japanese and is something of an arcane document, the Ministry of Justice issues Certificates of Nationality to anyone who might need them for overseas purposes. Even so, Yawata recalls, “They said the same thing: The certificate is issued based on the koseki. But when you read the government handbook on the issuing procedures, it clearly says that if a koseki isn’t available, they can accept the mother’s koseki and the applicant’s birth certificate issued by the hospital.” Akiyama and Yawata submitted the documents in March 1992 and are still waiting for an answer.

Yawata’s opposition to the family register system grew out of his experience as a student activist in the Korean community in Kyoto. “We were fighting the law that required resident Koreans to submit to fingerprinting because they were classified as aliens, even though they were born and lived all their lives in Japan.” The government has always maintained that such fingerprinting is necessary because non-citizens do not have koseki. Yawata, therefore, came to the conclusion that “the koseki system is the same as the fingerprinting system. It’s for labeling and controlling people. The government said as much.”

Most Japanese citizens probably have no reason to question the system. But those who do are not necessarily motivated by reasons of conscience as Yawata is. As long as a person lives a certain way, there will be little reason to even think about the koseki. But once a person strays from the path, whether willingly or not, the bureaucratic niceties that maintain the system will intrude on everyday life, and, as was the case with Noriko Nagaki, questions will emerge.

Nagaki and her partner at the time did not register their cohabitation status with the authorities, but unlike Yawata and Akiyama, they were determined to get a koseki for their daughter, Haruka. When Haruka was born, Nagaki’s divorce from her first husband had not been finalized, although they had been separated for some time.

After the divorce came through, she brought the birth report to the Higashinada Ward Office in Kobe. “I didn’t know if they would accept it, but I believed they should. After all, the child was definitely born, and what we wrote down was the truth.” The official refused to accept the birth report, saying that the name written in the space provided for the father’s name was not the name of the real father. According to Civil Code 772, the legal father of a child born to a divorced woman within 300 days of the divorce being finalized is the ex-husband. If Nagaki wanted a koseki for Haruka, she would either have to allow the authorities to put Haruka’s name in her former husband’s koseki, or get her ex-husband to waive his paternity. Since her ex-husband had once threatened to kill both her and her child, she decided not to do either. For the next several years, Nagaki studied the Koseki Law to see if she could find a loophole by which Haruka could be issued a koseki without involving her ex-husband.

When Haruka turned 12 Nagaki applied for a passport for her, but as in Moyu’s case was turned down because Haruka didn’t have a koseki. Nagaki has been fighting the bureaucracies ever since, trying to get them to issue her daughter a passport, but she has given up trying to get Haruka a koseki. “I’ve come to realize that the koseki system itself is stupid,” she said. “I think we can live without it.”

A CONSTITUTIONAL QUESTION

Article 14 of Japan’s Constitution states that “all of the people are equal under the law” regardless of “race, creed, sex, social status or family origin,” and, according to the Nationality Law, a person is deemed a Japanese citizen if “at the time of birth, either the mother or the father is a Japanese citizen.” The Ministry of Foreign Affairs’ refusal to grant Moyu Akiyama-Yawata and Haruka Nagaki passports would appear to violate the Nationality Law. In fact, the ministry never told the parents of these children that they are not Japanese citizens, only that it cannot issue them passports. The government sees it as a bureaucratic distinction, not a legal one.

Every birth in Japan must be reported to the local government office within 14 days. The parent, or whoever is doing the reporting, must bring proof of the child’s birth signed by a doctor. The birth report (shussho todoke) contains spaces for the names of the baby, the mother, and the father; the place and time of birth; and other details. In the middle of the form, the applicant must fill in the pertinent information about the honseki of the parents. The honseki is the “location” of the family register, and may not necessarily be the same as the address of their place of residence. The baby’s name is then sent to the local government office that has jurisdiction over the honseki and recorded in the parents’ koseki. For the child to be placed in the parents’ koseki, the birth report must be properly filled out and accepted by the official in charge. Yoshiko Tomizawa, a member of the Suginami Ward Assembly in Tokyo, and her partner, Seikichi Fujita, tried to report the birth of their son in 1983, but the office would not accept the form. According to Tomizawa, the officer who checked the document told them, “The child of an unmarried mother does not have a father, so you cannot fill in the space for the father’s name.” Tomizawa had also refused to check the box that indicated whether the child was legitimate of not. “It has no purpose. It’s just there to make the mother feel bad, because the officials already know if the baby’s illegitimate.”

Local government offices have been known to accept birth reports that aren’t filled out “properly.” Sometimes they leave them as they are and sometimes they alter them themselves. According to Bunmei Sato, a former civil servant who once worked in the koseki section of the Shinjuku Ward Office in Tokyo, and who has written several books on the subject, the only part of the report the officials are consistently strict about is the space where the applicant indicates his or her relationship to the child. “The person who submits the form is very important to the local government office because that’s the only information that is directly transferred to the koseki. The koseki actually shows who reported the birth.” If anyone submits the form other than the father, the feeling is that something is wrong. A mother or a proxy would only submit the form if the father was unavailable to do so, which is taken to mean that either he’s not married to the mother or he’s in jail. According to Sato, in many cases proxies or other persons who submit the form are effectively turned away at the window. “If the mother brings the form herself, they’ll ask her why her husband didn’t show up. Then they’ll say something like, ‘Well, we can check “mother,” but some people might misunderstand. Why don’t we just check “father” anyway?'”

WHO IS THE FATHER?

The reason behind this bureaucratic exactitude (or laxness, depending on one’s perspective) has to do with the authorities’ desire to officially nail down the paternity of the child. “As long as it says in the koseki that the ‘father’ submitted the birth report, then the nation has to acknowledge that individual as the real father,” Sato explains. “It proves somehow that the person who submitted the document is qualified to be the father. Parents have a legal obligation to report the birth of their child, and the authorities believe that that is the father’s responsibility. There is no other reason for the information to be recorded in the koseki.”

The first Koseki Law went into effect in 1871, just three years after the Meiji government was established. Every citizen was registered according to his or her physical household, but at the time the system was used solely for census purposes. The immediate aim was to enforce tax collection and military conscription. By 1875, all persons had been compelled to take surnames. (Previously, only the privileged classes had legal names.) The koseki indicated the social class of the household, as well as the relationship of all the members to the koshu, the master of the house.

Over the next 10 years, the government gradually required that more events be reported in the koseki document. Eventually, it included enough information for anyone to trace back the lineage of a household member as well as all the legal events that had taken place in his or her life. When the koshu died, his eldest son assumed his position at the top of the koseki. Women had no power under the system, and any woman who married automatically left her birth family’s koseki and entered into her husband’s family’s koseki.

Even then, the system was controversial. In 1882, Rinsho Mitsukuri, an expert in French law, told a government council that “the Koseki Law is unique to the Orient. It may have had some purpose in feudal times, but under today’s political system it has no meaning. You will find no such law in the West. As long as a Civil Code and a social identification system are in place, the Koseki Law is pointless.” Kiyoshi Watanabe, a Home Affairs Ministry bureaucrat, countered, “The master of the house is responsible for the entire family, and supports every member, from the oldest to the youngest. Since (the Japanese people) possess virtuous customs, the poor can be clothed and fed without the need for institutions. The koseki shows people how a family should exist. It should not be abolished.”

In 1889, the government passed a new Koseki Law that included the idea of the honseki, the permanent domicile where the koseki is registered. Although the koshu can change the honseki at any time and, in fact, can use any available address, most do not. To this day, Japanese consider the honseki as the family’s roots, and many are averse to changing it, even if their own family has not lived there for generations. Every address a member of the family lives at during his or her lifetime is recorded in the “attachment” (fuhyo) to the koseki, but the honseki never changes unless the koshu specifically requests it. The new law also removed the residence information from the document. At this point, the koseki became less a bureaucratic record than an abstract idea: One’s true family was specified in the document, whether its members lived together or not. In 1898, the Meiji government established ie seido (family system) in the Civil Code, which stated that the master of the house controlled all its members and the eldest son would take over the master’s position when he died. In his book Koseki to Jinken (Koseki and Human Rights, 1995), Shuhei Ninomiya writes, “Ie seido awarded control of the family’s labor to the master of the house, thus concentrating all the family’s wealth and property on him.”

It was the emperor system on a smaller scale. In fact, until the end of World War II, the koseki was referred to as the kominbo, or “list of the emperor’s subjects.” The emperor and his family do not have koseki. When Masako Owada married Crown Prince Naruhito in 1993, her name was ceremoniously removed from her parents’ koseki. All the dates in the document use nengo–the system used to indicate years according to imperial reigns–whereas any information in the document relating to non-Japanese spouses is recorded using Western years. Members of the imperial family do not even have surnames.

After World War II, while the Americans were busy writing a new Constitution for Japan, they attempted to eliminate ie seido. The Japanese bureaucrats in charge of overhauling the system resisted strongly. When the Americans suggested a system of registration based on individuals rather than families, the Ministry of Justice implied that they could make such a system once the country’s economy improved, but for the time being it was impossible owing to the serious shortage of paper and ink. In the end, they came up with a new koseki system based on the nuclear family: a married couple and their children, all with the same surname. The American legal advisers were not satisfied and recommended that the government publicize the fact that individuals could now leave their parents’ koseki at the age of 20 and draw up their own, called bunseki. When a couple gets married, they establish a new household, and thus make a new koseki. Although both parents are considered equal in the document, the box formerly designated “master of the house” remains, with a vaguer designation, hittosha, or “top of the list,” but essentially with the same function since the couple must decide which spouse’s surname will be written in the box. That will be the name on the koseki.

In 1952, with the signing of the San Francisco Peace Treaty, all persons formerly under Japanese colonial rule lost their Japanese nationality, including Japanese women married to Koreans or Taiwanese, since they no longer had koseki. Five hundred and fifty thousand ethnic Koreans were already living in Japan and some had been born in Japan. These residents were given alien registration cards (gaijin toroku). According to the Alien Registration Law, resident foreigners must carry the cards at all times and must produce them upon request by the police and other authorities. In 1955, the Japanese government required that all foreign residents, including resident Koreans, be fingerprinted for identification purposes.

PUBLIC RECORD

The function of the koseki is to verify people’s social status and family relationships. The right to “verify,” however, is not limited to pertinent bureaucrats. From 1886 until 1976, anyone, for a small handling fee, could view and even keep a copy of anyone else’s koseki; and even now, a moderately resourceful person can see another’s koseki without going through too much trouble. Many public offices will send copies through the mail based on nothing more than a phone call. Copies of koseki are required for certain official functions, such as applying for and renewing passports. They are sometimes requested by employers and landlords to be kept on file in case of emergencies, and are indispensable to private detectives. This is important because the koseki provides information–the marital status of one’s parents, one’s lineage–that many people feel has no practical bearing on anything but other people’s prejudices and, therefore, is no one’s business but the owner’s. Japan’s former untouchable caste, the burakumin, for example, exist nowhere but in the koseki, since the only criterion for consigning someone to the caste is the address of the honseki, which can be traced even when it has been changed.

The most basic control that the koseki places on people’s lives is the way it treats names. If the koseki is thought of as a room with a surname over the door, then every time someone enters the room she must change her surname, and every time she leaves it she must change her surname again, as well as that of her children if they follow her. Before the end of World War II a bride’s name was simply entered in the koseki of her husband’s family. And while the koseki system has since changed, people’s conception of it has not. To this day most people do not leave their parents’ koseki until they marry, and, according to government statistics, 98 percent of the time the husband is the hittosha, which means his surname is the name of the koseki. In this way, says Sato, ie seido, which the Americans had hoped to get rid of, “could reenter through the back door.” Because of the stipulation regarding names, the union is not thought of as a merger but rather an acquisition. The bride “leaves” her own family and is “received” by her husband’s family. The children produced by this union are uchi-mago (inside grandchildren) to their paternal grandparents and soto-mago (outside grandchildren) to their maternal grandparents. This concept remains even after death, since, according to ie seido, only people with the same name may be interred in a family grave.

Discrimination is thus a means for keeping order. “If you hide the discriminating aspects of the koseki,” Sato says, “then it becomes less significant, less effective. People become freer in their actions because they have less reason to feel intimidated.” That is why illegitimacy is an issue, since the government views it as a threat to a social order that is maintained by positioning families as the most irreducible units of society. In 1993, a representative of the Ministry of Justice, Jun Watanabe, told the U.N. Human Rights Committee in Geneva that discriminating between children of registered marriages and children born out of wedlock was vital for “supporting the institution of the family.”

OFFICIAL STIGMA

Japan’s illegitimacy rate is 1 percent. As long as an unmarried couple is childless, their cohabiting status will likely not cause them problems, but once they decide to have a child, the stigma of illegitimacy often forces them to register their union in one or the other’s koseki. Out-of-wedlock children are public knowledge because illegitimacy is indicated in the koseki and the birth report. Until recently, it was also indicated in the residents list (juminhyo). The stigma can be reduced somewhat if the father officially acknowledges (ninchi) the child as his issue in his koseki. Acknowledgment, however, carries with it no legal obligations. The Ministry of Health and Welfare provides a child support allowance to single mothers, but the ministry will cancel the allowance if the father acknowledges the child because they assume that he will provide support, even though there is no law that forces him to do so. The mother can never name the father, and although she can sue him in court to establish paternity, the burden of proof is on her, and court costs are high. Although the Nationality Law clearly states that a child of a Japanese father is Japanese, if the mother is non-Japanese and she is not married to the father, then, according to the same law (appendix 6, amended 1984) the father must acknowledge the child in utero if the child is to receive Japanese nationality.

In addition, the Civil Code states that an acknowledged illegitimate heir is eligible for half the inheritance of a legitimate heir, thus placing a monetary value on the stigma. It is easy to codify the stigma in this way because wills are not encouraged in Japan. In 1990, 820,305 deaths were reported and 5,871 wills inspected in family courts. Succession is promoted as both a right and an obligation. Children are essentially guaranteed their parents’ property. This is another function of the koseki, since it shows, in unambiguous terminology, the order of succession–first son, first daughter, second son, etc.–despite the fact that, by law, all legitimate children are qualified to receive equal portions of the legacy. The terminology’s only function is to keep ie seido alive. This is obvious because illegitimate children are simply labeled “male” or “female” in the koseki.

Adopted minors also carry stigma, since they do not have a blood relationship with their adopted parents, and, it is believed, such relationships inevitably lead to delinquency. In the 1970s, Dr. Noboru Kikuta, a gynecologist, came to feel he was performing too many abortions on women who simply wanted to avoid the stigma of illegitimacy. He knew there were childless couples who would gladly adopt an illegitimate child if only the fact weren’t spelled out so clearly in the koseki. So he manipulated documents to give the impression that the child of an unwed mother had actually been borne by the adopting woman. He was eventually arrested and lost his license–probably because he advertised his services.

AVOIDING EMBARRASSING QUESTIONS

When babies were delivered at home, it was not uncommon for the children of unwed mothers to suddenly appear as direct offspring in their grandmothers’ and married aunts’ koseki. But once hospital births became the norm, it was impossible to pull off such a deceit. The publicity surrounding the Kikuta case compelled the government to pass a new law in 1987 that allowed people to adopt children up to the age of six and place them in their koseki without using the word yoshi (adopted child). The koseki listed the child as the natural offspring of the parents, but anyone with elementary knowledge of how to read the events listed in the document could tell that the child was adopted. The birth mother, however, by changing her honseki can receive a “clean” koseki that shows no evidence of the birth. If she does not, then her koseki will have an X in the box that once contained the child’s name, a distinction that makes it very difficult for her to find a husband. Nevertheless, the stigma is so powerful that many unwed mothers feel more comfortable if the child leaves the country altogether, and the government places little if no restrictions on overseas adoptions. The United States Immigration Service reports that between 1983 and 1992 more than 600 babies were adopted from Japan by American couples. In 1992 alone, 71 babies were adopted, 49 of whom were less than one year old. The next highest G-7 nation on the list was Great Britain, with nine adoptions.

Adoption is fairly common in Japan, but most of the adopted parties are adults. Japanese law allows anyone, no matter how old, to be adopted by anyone else as long as the adopting party is at least one day older than the adopted party. Most of the people who adopt in this way are families with no sons. Adoption allows them to pass on their family name through daughters, thus guaranteeing that someone will maintain the family grave. They do this by first adopting their future son-in-law as their own son and placing him as the hittosha in the koseki, thus allowing him to save face (and making his new bride not only his wife, but his sister, too). This kind of adult adoption is also common for people who have no natural children of their own, but who want someone to take care of them in their old age. In 1994, the government counted 79,000 adoptions, but just 452 of them were court-approved adoptions of minors. The population in Japanese orphanages in the same year was more than 27,000.

LINKING NAME UNIFORMITY TO FAMILY STABILITY

In 1995 an advisory panel to the Ministry of Justice proposed changes to the Civil Code that have a direct bearing on the koseki. These changes include making the inheritance portion of acknowledged illegitimate children equal to that for legitimate children, and allowing married couples to use separate surnames. The Diet was scheduled to discuss these changes in its most recent session, but opposition within the ruling coalition caused those discussions to be postponed. Supporters are concerned that the discussions will not be carried out in the fall session either.

The general position of lawmakers who oppose the changes is that allowing for separate names would undermine the integrity of the family. Masakuni Murakami, the former secretary-general of the Liberal Democratic Party, has said publicly that “separate names for spouses weakens family ties. Individualism can only lead to disorder in Japan.” Hiroshi Nakai, a member of the Law Advisory Committee that will decide whether the proposed amendments will go to the Diet, has said, “When I was Minister of Justice, the Law Advisory Committee wanted to talk about revising the Civil Code, and I told them that they should spend a lot of time thinking about it before they change such an old tradition.”

Even if separate names were allowed tomorrow, it would not have the effect that these politicians fear. The Justice Ministry itself estimates that only 3 percent of married couples would opt for separate names, and this 3 percent are not necessarily opposed to the koseki system. “The people who want to keep their names essentially want to do so for their own convenience,” Sato says. “They aren’t really concered about rights or principles.” The revision may have no meaning for rights advocates anyway, since the recommendation includes a requirement that a couple must choose at the time of their marriage which family name all of their children will take. “If each child in a family had a different name it would effectively destroy the koseki system,” says Sato. “The government can’t allow that.”

What is ironic about the conservatives’ intransigence is that it may eventually doom ie seido. The Justice Ministry is responsible for the koseki system and is promoting the Civil Code revisions not because it suddenly has a more liberal attitude toward the family, but because it must deal with a changing society in which marriage is increasingly seen as a lifestyle decision and not an obligation. Couples who do not register their unions simply because they prefer to keep their surnames will do so if the revision is passed, thus reinforcing the system. The Justice Ministry realizes that the koseki must bend if it is to even survive. A koseki is not the only document capable of proving nationality, but saying so gives it a purpose. Although the stigma against illegitimate children remains, more people are having children out of wedlock, a situation that progressively weakens the koseki system

As with many changes in Japan, the greatest challenge to the system has come from outside. During Japan’s imperialist era, citizens of colonized countries were made to take Japanese names, and traditionally a person who wanted to naturalize had to change his or her name to a Japanese one. In the past several years, however, more ethnic Koreans who took Japanese names when they became citizens have been permitted to recover their Korean names and use them in their koseki. The Brazilian soccer star Rui Ramos was naturalized in 1989 and allowed to retain his name. In 1985 the government liberalized the rules regarding international marriages. A non-Japanese still cannot be placed in any of the boxes on his or her spouse’s koseki (which means a foreign woman cannot take her Japanese husband’s name in the eyes of the authorities), but a Japanese person can have her name changed to her foreign spouse’s within six months of the marriage and have that name placed in her koseki as the hittosha. This means the children, who are Japanese citizens, can also use that name. In fact, if the Japanese wife of a foreign man chooses to keep her name, the government will allow their children to become hittosha in their own koseki at birth, using their father’s surname. This is exceptional because normally a person cannot have a separate koseki until he or she reaches the age of 20 or marries, whichever comes first.

And as Japan becomes more “internationalized,” human rights organizations will increasingly question the discriminatory features of the system. The Justice Ministry has already been told by the United Nations Commission on Human Rights to revise the inheritance laws and remove discriminatory teminology from government forms since they violate the International Covenant on Civil and Political Rights, to which Japan is a signatory.

In 1994, to very little media fanfare, the Justice Ministry managed to get Diet approval to unify the nation’s koseki system by computer. Considering the enormous amount of money and time needed for such a project, the system could be moribund by the time it goes on line. Or maybe not. The koseki will survive as long as people continue to feed it by reporting their births, marriages, and other events “The koseki represents authority,” says Sato. “And bureaucrats are called okami–gods. As long as the Japanese people think that way, the government will always be able to intimidate them.”