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Background note on sex discrimination in birth registration

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1. Introduction

Birth registration is a fundamental right and an enabler of other rights as it bestows a legal identity on children for life. If a child is not registered, they do not officially exist and are vulnerable to violence, abuse, neglect and exploitation.

Without birth registration, a child may not be able to go to school, receive medical treatment or benefit from social services. The absence of registration can also lead to statelessness. Yet, despite its importance, the births of millions of children around the world are not registered. A multitude of factors can impede birth registration, including parents’ lack of knowledge of its importance, financial considerations and practical barriers to accessing birth registration facilities. Beyond these factors, discrimination impeding women’s ability to register the birth of children is also a critical barrier. Such sex discrimination may be codified in national legislation and regulations, or may relate to practices based on cultural norms.

Under the umbrella of The Coalition on Every Child’s Right to a Nationality, UNICEF and UNHCR have produced this background note to explore the issue of sex discrimination in birth registration. By providing an overview and country specific examples of the kinds of legislative provisions and cultural norms that can negatively affect women’s ability to register the birth of their children, it is hoped that it will support advocacy efforts, and action by States, that advance a number of the Coalition’s objectives, including:

  • Ensuring that no child is born stateless;

  • Eliminating laws and practices that deny children nationality on discriminatory grounds; and

  • Improving birth registration to prevent statelessness.

Birth registration is defined as “the continuous, permanent, compulsory and universal recording, within the civil registry, of the occurrence and characteristics of birth in accordance with the national legal requirements of a country.” It involves the official recording of the birth of a child and entry in the State’s civil registry by an administrative body of the government, which is usually followed by the issuance of a birth certificate. Birth registration, particularly the issuance of a birth certificate, is vital to establishing legal identity and also in preventing statelessness. A birth certificate contains key information on parentage, date and place of birth which is used as proof of legal identity and evidence of links to a State needed to establish nationality. In countries where nationality is primarily acquired on the grounds of descent (jus sanguinis), information about the identity of a child’s parents recorded in the birth certificate provides key evidence of eligibility for nationality; in countries where nationality is acquired on the grounds of birth in the territory (jus soli), the information on place of birth in the birth certificate provides the evidence of entitlement. The date and time of birth recorded in a birth certificate are also potentially relevant to eligibility for nationality, as this information informs the authorities about the nationality law in force at the time of a person’s birth.

In the absence of proof of relevant links to a State, a child can be left at risk of statelessness. The lack of a birth certificate does not on its own render a person stateless, but as noted above the possession of a birth certificate containing relevant information on parentage, place and time of birth helps to establish entitlement to nationality. In certain cases, a birth certificate is a prerequisite for obtaining nationality documentation (such as a national ID card or a passport) or is regarded as proof of nationality.

In some countries, national ID cards are only issued at the age of majority, while the issuance of passports may be subject to discriminatory and procedural barriers for various categories of children such as those born to foreign fathers. In these contexts a birth certificate often serves as temporary proof of nationality until the age of majority is reached in order to access education and healthcare.

Certain population groups experience more challenges in accessing birth registration than others. Nomadic and border-dwelling populations, for instance, are more likely to experience geographical obstacles when attempting to access birth registration services. Lack of a birth certificate may place them and their children at particular risk of statelessness given that they may be perceived as not fully belonging to the country or countries in which they reside. Members of minority groups may also find it difficult to access civil registration and documentation on an equal basis with their fellow citizens, which can put them at risk of statelessness. Migrants in an irregular situation, asylum seekers and refugees may not have the information they need about how to register the birth of children or may not want to approach birth registration authorities for fear of detention or deportation. Refugees and Internally Displaced Persons (IDPs) may have lost their own documents in flight, which can make it harder to register their children. They may also experience difficulties in accessing birth registration in the country or place of refuge. Unaccompanied, separated and abandoned children often lack documents establishing their identity, creating a risk of statelessness.

Birth registration and non-discrimination against women as fundamental human rights

Birth registration is a fundamental right and States have a duty to register all births that occur in their territory irrespective of the legal status of the parents. The Convention on the Rights of the Child provides in Article 7 (1): ‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’

As the fulfilment of the right to be registered is closely linked to the realization of other rights, the obligation on States to register the birth of children is also found in several other widely ratified international human rights treaties. Article 24 of the International Covenant on Civil and Political Rights (ICCPR) requires States to conduct birth registration immediately after birth and without discrimination of any kind.

The right to birth registration is also included in the International Convention on the Protection of Migrant Workers and Their Families, the Convention on the Rights of Persons with Disabilities, and in many regional human rights instruments.

The principle of equality and non-discrimination against women is also well-established in international human rights law. The primary international human rights treaty concerned with the protection and promotion of women’s human rights is the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which has as its object and purpose “to eliminate all forms of discrimination against women with a view to achieving women’s de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms”. Article 2(f) of CEDAW requires States Parties to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”

Article 9(2) of CEDAW states that “States Parties shall grant women equal rights with men with respect to the nationality of their children.” Discrimination against women which prevents them from registering the births of their children can interfere with the fulfilment of States’ obligations under Article 9(2) of CEDAW. Other widely ratified human rights treaties also contain obligations relating to the equality of women. For example, the ICCPR in Article 3 requires States to ‘undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.’