21 August 2020
In recent years legal identity has become an important and evolving issue in international policy circles. A legal identity helps ensure a child has access to justice and legal protections. However, legal identity is not defined in international law and this coupled with conflicting and discriminatory laws around the world, poverty and civil disruption results in a global legal identity gap.
Growing uptake of assisted reproduction and the lack of international harmonisation of approaches to assisted reproduction around the world creates additional challenges from a legal identity perspective. As such, there is growing understanding that more needs to be done and that legal identity extends beyond existing frameworks based on biology, legal parentage and ties with family and private life.
Birth registration
It is a basic state obligation to ensure every individual in its jurisdiction is recognised as a person before the law under Article 6 of the Universal Declaration on Human Rights 1948. One way of achieving this is by the registration of every child’s birth in the state. The right to birth registration is a fundamental human right of every child under Article 7 of the United Nations Convention of the Rights of the Child 1989 (UNCRC 1989).
Birth registration does not establish nationality but it helps to prevent statelessness because it establishes a legal record as to where a child was born and records who his/her parents are, being key bits of information in establishing entitlement to nationality under separate state nationality law. National Guidelines issued by the Home Office state that UK birth certificates are ‘evidence of an event’ of birth and not evidence of an individual’s identity for the purposes of conferring British nationality upon a child.
However, despite member states’ commitment to have universal civil registration and vital statistics (CRVS) systems, over 110 low and middle-income countries lack fully functioning systems. As such, it is estimated that there are more than 1 billion children under the age of five across the globe who do not appear in national records of civil status. They are legally invisible and this creates significant legal problems, including statelessness. It can also leave them vulnerable to marginalization, discrimination, abuse, child marriage, forced marriage of girls, child labour and child trafficking. Lack of birth registration can also undermine, or even prevent, their ability to access education and obtain employment.
Birth registration following assisted reproduction, including gamete donation and surrogacy, creates additional problems too. Operation of state law and policy can result in a mismatch between the child’s intended parents and those actually recorded on the child’s birth certificate. This can create complex international conflicts of law that leaves a child legally parentless and stateless and lacking a legal identity. This in turn can result in complex legal proceedings to resolve the child’s legal identity, parentage, status, care and family narrative.
Global legal identity initiatives
To help address the global identity gap, there have been a number of initiatives in recent years. In 2014, the World Bank launched its Initiative on Identification for Development. This promotes global digital identity and civil registration systems as these have the potential to transform state development prospects.
The First International Identity Management Conference was held from 23 – 25 September 2014 in Seoul, South Korea, with participants from Africa, Asia Pacific, Seoul, South Korea, Latin America and Caribbean Regions.
From 21 – 24 April 2015, an international conference called the Colloquium on the Future of Legal Identity was held in the Hague, Netherlands, where social scientists and identity policy researchers looked at various forms of civil registration and identification used around the world to inform policy makers. This highlighted the importance of developing and separating the terms legal identity, registration, citizenship, identification and ID documentation.
In September 2015, the 2030 Sustainable Development Goals (SDGs) (17 of them along with 169 targets) were adopted by all United Nations Member States. Within these, target 16.9 aims to “provide legal identity to all, including birth registration by 2030”. The SDG target intentionally focuses on birth registration as a pragmatic and bureaucratic way of dealing with legal identity since birth registration and civil documentation makes an individual legally visible in practice. A legal identity also helps promote inclusion. This ties in with Goal 16, under which the legal identity target falls, to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”.
To help member states achieve the SDGs and meet target 16.9 to “provide legal identity for all, including birth registration”, the United Nations formed the Legal Identity Expert Group (LIEG) in September 2018. The LIEG’s main focus is to create an effective and cohesive response to help member states achieve the goal of closing the global identity gap.
In December 2018, the Global Compact for Safe, Orderly and Regular Migration was adopted by United Nations Member States. Within this Objective 4 aims to “Ensure that all migrants have proof of legal identity and adequate documentation”. This focuses on legal identity and civil registration rather than citizenship, as a means of dealing with migration across the world.
In December 2019, the UN LIEG transitioned into the United Nations Legal Identity Task Force (UN LIA TF) under the same chairmanship. It has a number of goals, including overseeing the implementation of the UN LIA at a regional and national level and briefing senior UN principals (including the Strategic Results Group on SDG Implementation) on latest developments in the implementation of the UN LIA.
Specialist legal advice
Despite these initiatives, the global legal identity gap and the lack of international consensus continues to create complex legal and practical issues for children, parents and families. This may be particularly applicable to those who lead international lifestyles, build families through complex cross-border assisted conception arrangements and create exceptional family building frameworks. Specialist legal advice can help address a number of issues including:
- Difficulties resolving a child’s legal identity, status, parentage or rights (to include a parental order, adoption, declaration of parentage, wardship).
- Problems obtaining a passport or travel papers for a child born overseas.
- Issues and difficulties in obtaining, exercising or extinguishing parental responsibility for a child (to include orders to acquire, exercise or restrict parental responsibility).
- Problems and disputes associated with the care and upbringing of a child.
Need a legal parentage lawyer or a family lawyer? If you would like to discuss your situation or you require specialist fertility and family law advice about a child’s legal identity, parentage, status or rights please contact Louisa by email louisa@louisaghevaertassociates.co.uk or by telephone +44 (0)20 7965 8399.
