Constitutional Court Rules Omission of Birth Registration for Foreign Children Unconstitutional

The Constitutional Court of Korea has declared unconstitutional the legislative omission that fails to provide for birth registration under Korean law for foreign children born in the Republic of Korea, in a decision announced on 27 August 2026 and published in the Official Gazette (Gwanbo) No. 21321 of 14 September 2026 under Constitutional Court Public Notice No. 2194 (case 2022헌마255). The unanimous ruling, signed by Chief Justice Kim Sang-hwan, confirmed that the State’s failure to legislate a birth registration mechanism for foreign-born children violates the child’s fundamental right to be registered immediately after birth.

The Case and the Claimants

The petition was filed on 25 February 2022 by a Vietnamese national identified as Eung○○, who entered Korea on 7 October 2008 under a non-professional employment (E-9) visa and has since overstayed and become undocumented, together with his minor child Eung□□, born in Korea on 9 April 2019. The child’s mother, Do○○, also a Vietnamese E-9 visa holder who entered on 1 June 2008, gave birth in Korea, but the child could not be registered under Korean law and was instead registered under Vietnamese law on 6 March 2020.

The claimants argued that the legislative omission, together with provisions of the Framework Act on Education and the Enforcement Decree of the Elementary and Secondary Education Act, infringed their fundamental rights. The Court dismissed the father’s petition and the child’s remaining claims as inadmissible, but upheld the core challenge to the legislative omission.

The Right to Be Registered Immediately After Birth

The Court held that the “right to be registered immediately after birth” is an independent fundamental right derived from Article 10 of the Constitution (human dignity and worth), combining both a liberty-right character and a social-right character that guarantees the child’s healthy growth and development. Citing its earlier decision in 2021헌마975 (23 March 2023), the Court stressed that this right cannot be conditioned on whether the child is a national or a foreigner, since every child is a precious life and an independent person who cannot choose where, in which country, or to whom they are born.

The Court found that the existing family relations registration system (가족관계등록부) functions only as a nationality register for Korean citizens, making birth registration impossible for non-nationals. It further noted that the foreigner registration system under the Immigration Control Act serves immigration and residence-management purposes and cannot function as a birth registration system, particularly for children of undocumented parents or those unable to register in their home country.

Toward a Universal Birth Registration System

The Court emphasized that Korea, which ratified the UN Convention on the Rights of the Child in 1991, has been repeatedly urged by the UN Committee on the Rights of the Child (in 2011 and 2019) to make birth registration universally available regardless of parents’ legal status or origin. It observed that many countries, including those adopting jus sanguinis nationality rules such as Germany, Australia, the Netherlands and Japan, nonetheless apply jus soli principles for birth registration.

The Court concluded that the legislative omission cannot be justified, noting that unregistered children face heightened risks of abuse, abandonment, illegal adoption, infant trafficking and forced labor, and lack access to medical care, education and legal protection. It ordered that the right be guaranteed effectively, with safeguards ensuring that a lack of residence status does not impede registration or expose parents to immigration enforcement.

Source: 관보 (Gwanbo), No. 21321, 14 September 2026, Section I (헌법재판소), p. 213 (official reference: 헌법재판소공시 제2194호, case 2022헌마255).