Marriage, Parentage and Child Registration in Iran: Legal Status of Children of Unmarried Parents

Abstract

In the contemporary legal system in Iran, child registration is closely tied to Islamic marriage. The Civil Registration Law foresees a process for registering a child born to Islamically married parents. This raises the question of what happens to children whose parents are not married. This paper uses literature review and content analysis methods and focuses on the Iranian law, press and media pieces, Shi’i rulings, and academic literature on child ‘legitimacy’ and the unregistered child phenomenon to answer this question. I explore the relationship between Iran’s marriage and parentage law and the child registration process. The paper discusses the consequences of rendering children legally ‘illegitimate’ for children’s rights. The conclusion addresses the potential in the Shi’i school of Islam to improve religious rulings and, consequently, the possibility of changing discriminatory laws regarding the rights of children born to unmarried parents.

1. Introduction

‘Legal identity for all’ is part of the United Nations agenda by the Sustainable Development Goal Target 16.9 to dramatically increase birth registration by 2030 (UN Stats: Legal Identity Agenda n.d.). Globally speaking, there seems to be a visible improvement in birth registration rates, with about three in four children younger than five years registered in 2019 compared with six in ten around 2000. There are, nevertheless, many children around the world who remain unregistered. There are also tremendous regional and continental differences in registration rates (see e.g., Hereward et al. 2019). The unregistered children phenomenon has been associated with low education of the parents, lack of access to institutions responsible for processing registrations, belonging to a family that lives in rural areas, and weaknesses in the registration systems (Huseby-Lie et al. 2021). A lack of registration can lead to adverse social consequences for the children, as their rights to education, access to health care, and other fundamental services provided by the State may be impacted by the lack of registration (Chapman 2019; Huseby-Lie et al. 2021).

In Iran, the percentage of children whose births are unregistered remains unknown (Hezarjaribi and Hamed 2018; UNICEF n.d.). The existing limited information accessible to the researchers about the phenomenon comes from the journalistic pieces and statements made by officials to the press on the topic, but this information is often not accurate. In 2018, the Social Welfare Deputy of the Iranian Ministry of Cooperative Labour and Social Welfare1 stated that in Iran, overall and across all ages, forty-nine thousand children born to Iranian mothers do not have a birth certificate (Iranian Students News Agency 2018). However, other non-official news sources have estimated the number to be around a million (see, e.g., Independant Farsi 2021). None of these sources have substantiated their reported numbers, and the exact number of unregistered children remains unknown.

The unregistered children phenomenon is closely tied to marriage and citizenship laws. A significant reform in the country’s citizenship law in 2020 granted the right to attain Iranian citizenship to children born to Iranian mothers and non-Iranian fathers (Rooznameh Rasmi 2020). Before this, citizenship was granted to children only when their father was an Iranian national, which led to unregistered birth events when Iranian mothers were married to non-Iranian fathers. The reforms went into effect during the second presidential term of Hassan Rouhani—Iran’s seventh president who is widely known as a reformist. The reforms resulted from internal activism and the shift within the government and were not caused by international pressure. Despite the reforms in 2020, one year after the law was adjusted to grant citizenship through both parents, only 1401 children have received birth certificates (Independant Farsi 2021). This may have been caused by the risks regarding the ambiguous residence status of non-Iranian fathers, who are sometimes undocumented migrants (Haghighattalab 2020).

There may also be a connection between homelessness and the unregistered children phenomenon. In this case, the unregistered children’s mothers are considered homeless women or sex workers (Mohammadi 2017) who lack access to social services and health care. In addition, the lack of access to safe abortions is another factor that may play a role. Abortion by choice is illegal in Iran, and only ‘medical’ abortion is allowed under very specific conditions: fifty-one maternal and fetal conditions would qualify the mother to apply for a ‘medical’ abortion. Even when an application is submitted, and if the required medical conditions are proven to exist, then abortion applications get approved half the time, and up to the gestational age of nineteen weeks (for more details on abortion law in Iran, see, e.g., Mahdavi et al. 2020). As a result of these restrictions, many women choose unsafe abortions. However, since the criminalization of abortion has further intensified, it may be harder for unmarried and impoverished people to access safe facilities to terminate unwanted pregnancies.

In the current Iranian legal system, child registration is closely tied to Islamic marriage (I will address this in detail in the following sections). The central theme of this paper is the legal setup that leads to registration problems for children born to unmarried parents. From the perspective of political and legal sociology, I will show how Islamic marriage came to define the ‘legitimacy’ of parentage in the legal system of the Islamic Republic of Iran and how this, in turn, impacts child registration laws in Iran and the socio-legal position of children who are rendered ‘illegitimate.’ This paper uses literature review and content analysis methods and focuses on the legal codes, press, and media pieces, Shi’i rulings, and academic literature on child ‘legitimacy’ and the unregistered child phenomenon to explore the relationship between the Iranian State’s marriage and parentage law on the registration of children and its consequences of the rights of the child.

The following section will first introduce the general processes of registering a child born to married parents in Iran. I will then discuss the so-called ‘illegitimate child’ phenomenon and its implications for the child’s registration process. In the next sections, I will discuss the social and legal consequences of registering a child as ‘illegitimate,’ including what rights a child born to a so-called illegitimate marriage has or lacks. The final discussion section will position the problem within contemporary socio-legal discourses around the ‘illegitimate’ child phenomenon and the potential of religious rulings in the Twelver Shi’a school of Islam to improve the current legal framework.

2. Child Registration in Iran

After the Iranian Revolution in 1979, which transformed the country from a monarchy to a self-proclaimed Islamic State, the Islamic Republic of Iran was founded as a State that aims to adhere to Twelver Shi’a Islam in its legal system. Twelver Shi’a is the largest branch of the Shi’a school of Islam. It also constitutes the largest religious community in Iran. In this paper, I use Shi’a [noun] and Shi’i [adjective] to refer to the Twelver branch. As a result of the post-1979 Revolution reforms, the State encoded a combination of Shi’i Shari’a and non-religious laws. This means that both religious and political institutions practically co-create and co-update the country’s legal frameworks (Roy 1999). The shift towards Shi’a jurisprudence revolutionized great segments of the law and specifically led to radical changes in family and gender laws (see, e.g., Entessar 1988; Mir-Hosseini 2007; Rahbari 2019). As Moghadam (1999) argues, the post-1979 Revolution legal system employed a more classic and ‘purist’ reading of Shi’a Islam that only considered Islamic marriage a legitimate form of matrimony. Relationships outside of Islamic marriage thus became outlawed and subject to punishment (Rahbari 2016). As an extension of this, only children born to Islamic marriages are considered ‘legitimate,’ which has consequences for parentage rights and the legal status of children born to unmarried parents. The next two sections will discuss these consequences and the registration process for the so-called ‘legitimate’ and ‘illegitimate’ children.

2.1. The Conventional Route to Child Registration

IRI’s National Organization for Civil Registrations (hereafter abbreviated as NOCR) is responsible for registering birth and death events and issuing certificates, as well as collecting vital and human statistics (UN Stats n.d.). NOCR adheres to the Civil Registrations Law enacted in 1976 and was partially reformed in 1984 after the Iranian Revolution (NOCR 2021). This reform was to make sure that the law was compatible with what the State considers Islamic law. According to the Civil Registration Law, when a child is born to Islamically married parents, the parents must register the birth event within fifteen days. Failing to report a birth event and registering a child is subject to a monetary fine. Registration of a child in the national registry is compulsory and leads to issuing a birth certificate. Iranian birth certificates are pocket-sized booklets similar to European passports in shape and size. They are important documents required widely for official administration and are often carried around and function as identity documents.

The process of registering a birth event is as follows: (any of) the child’s father, paternal grandfather, or mother can refer to NOCR to register the child. The process will lead to issuing a birth certificate for the child. The person who applies for the birth certificate should present both the mother and the father’s birth certificate and a certificate of the delivery of the child issued by a registered physician or a midwife responsible for the child’s delivery (NOCR n.d.). Marriage certificates are not necessary to prove that the parents are Islamically married because, according to Iranian marriage law, both marriage and divorce events are documented in the spouses’ birth certificates. Therefore, the parents’ birth certificates alone can be used as proof of both marriage and identity.

A part of the registration process is to choose the newborn’s given name. The applicant—the person who refers to the civil registry in person—will be responsible for choosing the child’s given name. According to Article 20 of the Iranian Civil Registry Law, only conventional, Islamic, and Iranian names can be selected for the child’s given name, and choosing foreign names, names that are considered unconventional or considered ‘inappropriate’ and ‘incompatible’ with the child’s gender is not possible (Davoudabadi: Article 20 n.d.). For the given name NOCR has an online repository of accepted names2 that the applicants should refer to before referring to the registry to check whether their chosen name is acceptable or not. There is, however, the possibility to register a new name—with the condition that it fits the above criteria—in the repository if it is not already included there.

For the child’s last name, however, the parents cannot choose between the last name of the mother and that of the father. The child automatically receives their father’s last name. The practice of exclusively assigning the father’s surname to the child reflects the patriarchal and patrifocal foundations of family in Iranian Shi’i law (Mir-Hosseini 1992). There is only one exception to this rule, where the child may receive the mother’s last name, which is in the case of children whose fathers are unknown. The process of registering a child born to Islamically married parents is thus rather straightforward, but the same cannot be said about the case of children born to unmarried parents.

2.2. Registration of Children of Unmarried Parents

The Civil Registration Law includes a process for registering a child that applies to Islamically married parents. This raises the question of what happens to children whose parents are not married. To understand how a child is considered ‘(il)legitimate,’ one needs to understand marriage laws in Iran. This starts with knowing that only one type of marriage is accepted by the law: religious marriage, which predominantly constitutes Islamic marriage. This means that minorities such as Christians, Jews, and Zoroastrians, who are recognized in the constitution of 1979 as official religious ‘minorities,’ can conduct marriages services according to their own religious traditions. Besides these three officially recognized religions, all other marriages should be Islamic and officiated by the Muslim clergy. In addition to the compulsory religious ceremony, all marriages must be registered to become official. This means that while Islamic marriages ‘legitimize’ relationships from a religious perspective, marriages become legal only after the official registration of a religious marriage.

There are different forms of marriage in Iran, including temporary and permanent marriages. Temporary marriage, known as sigheh in Iran, refers to a legalized form of marriage between a man and a woman for a short and predetermined period, for which the woman gets compensated (for more detailed definitions, see, e.g., Rahbari 2019, 2020a). Children born to any of the two forms of marriage—permanent and temporary—are considered legitimate and may be registered by their parents at the civil registry. In other words, as long as the child is born into parents who have conducted an Islamic marriage, they can be registered. If the parents only conducted an Islamic marriage and did not register their marriage, they broke the law by evading registration. Therefore, they will be punished for failing to register their marriage, but their child is still considered ‘legitimate’ and can be registered. However, when the parents do not conduct an Islamic marriage, their child will be considered ‘illegitimate’ and cannot be registered at the civil registry through the conventional route.

To further clarify when and why a child is considered ‘illegitimate,’ the notion of zena or zina [Persian and Arabic versions of the same term respectively] becomes relevant. Based on Shi’i jurisprudence, if one or more of the persons involved in a relationship are committing adultery and are not married, they are committing zena. Zena includes sexual relationships outside of marriage, such as adultery and fornication, and thus also encompasses sex work, unless the sex worker gets temporarily married to the person they have sex with (in Iran, temporary marriage is sometimes used in the context of sex work, Rahmani et al. 2021). According to Shi’i legal scholars, a child born to an Islamic marriage is called ‘legal,’ but a child born to an unmarried couple is called ‘illegitimate’ or ‘natural’ [in Persian: tabi’i] child.3

The difference between a legal and a ‘natural’ child derives from parentage. There is disagreement among Shi’i legal scholars about the parentage of a child born to a couple who are not ‘Islamically’ married. Still, the dominant view in Shi’a Islam is that if a child is born to a couple committing zena, then parentage ties between the biological parents and the child cannot be established. Meaning that the child is not ‘legitimately’ or ‘legally’ ascribed to any of the parents and is denied any kind of legal filiation (Mir-Hosseini 1992). This is why the term ‘natural child’ is used, to indicate that the parents are ‘naturally’ [or, biologically] related to the child, but when it comes to familial lineage [nasab], the child is considered an illegitimate part of the family line. Based on this reading encoded in the Iranian civil law (Article 1167), a child is not ascribed to the parents who committed zena (Davoudabadi: Article 1167 n.d.).

The term ‘child of zena’ [in Arabic, valad al-zina] is used in Civil Law to refer to a child born to unmarried parents. This categorization of ‘natural’ and legal children is discursively and legally problematic as it distinguishes between children depending on their parents’ marital status. However, even though referring to children born outside of Islamic marriage as ‘natural’ is stigmatizing, it is perhaps less problematic than calling them ‘illegitimate’ or using the offensive term valad al-zina, as is used in Iranian Civil Law, particularly considering that the Persianized version of the latter Arabic term valad-e-zena is a derogatory term with strong negative connotations in Iranian society.

Only recently, on 16 September 2020, did the National Organization for Civil Registrations spokesperson publicly announce that children born to unmarried parents will be given birth certificates after court approval. The statement was published by multiple Persian-language news platforms (including, Hamshahrionline, Khabaronline, Serat News, Aftab Yazd, Bartarinha, etc.). Before this, there was very little official recognition of the existence of children born to unmarried parents and a lack of legal attention to their unclear status according to the law. This attitude is not only traceable in Iran and other states that adopt similar strategies by ignoring the unregistered children of more vulnerable groups (see Keskin and Çavlin 2020 for the case of Turkey). The registration process of children born to unmarried parents is not as straightforward as for children born to married parents, and some factors deter parents from coming forward. For instance, if it is established that a child is born to unmarried parents, the parents will be considered adulterous by law and will be subjected to punishment based on the Islamic Penal Code (often in the form of whipping, see Ghassemi 2009). The parents can submit an application for a birth certificate for their child to the court or get married, but none would exempt them from the punishment.

The registration process also covers cases where the child’s father is unknown. In these cases, the mother can file a request to the court, and after the approval of the attorney general, the child will receive a birth certificate (Hamshahrionline 2020). This birth certificate will contain the mother’s last name. This is the only situation where the law allows the mother’s last name to be assigned to their child. However, the birth certificate cannot be issued only with the mother’s name and last name and will also include a ‘hypothetical’ father’s name to avoid leaving the father’s name section empty. It is vaguely discussed by the authorities that adding a ‘hypothetical’ name to the birth certificate is for the child’s benefit, as it can protect them against problems at school and later in life (Hamshahrionline 2020). This precaution may be helpful to reduce the stigma of being a fatherless child. Nevertheless, at the same time, it also reflects the discourses that the Iranian State adheres to when it comes to the family. A family unit cannot be formed without a father, and hence, a made-up identity should be imposed on the child to create the illusion of a ‘complete’ heteronormative family.

3. Parentage and the Rights of the Child

In terms of the legal responsibilities of the parents towards their so-called ‘natural’ child, Iranian law, when it comes to custody [in Persian, hezanat], guardianship [in Persian, velayat], and alimony [in Persian, nafagheh], does not distinguish between a ‘natural’ and a legal child. There is no clear definition of custody in the law, but what can be extracted is caring and nurturing the child until they reach the legal age of maturity. The custody of both the ‘natural’ and the legal child is given to their mother until the child reaches seven years and is then passed onto the father (Hakimian 2002). Guardianship is the legal authority over the child in making decisions about all financial, educational, and social matters. In his absence, guardianship of both the ‘natural’ and the legal child is given to the paternal grandfather. In other words, the child remains under the care and custody of their mother until they are seven years old, while the right to guardianship remains with the father and the paternal grandfather (Mojab 2001). Only in the absence of both the father and the paternal grandfather does the mother become eligible to become the child’s legal guardian. Alimony is the financial protection of the child and, for both the ‘natural’ and the legal child, the responsibility of the father and paternal grandfather in his absence (Ebrahimi 2005). The law, thus, makes parents or the parent responsible for taking care of the children until they gain maturity.

While the difference between natural and legal parentage does not impact the laws and rights to custody, guardianship, and alimony rights, it impacts inheritance rights. According to Article 884 of Iranian Civil Law, a ‘natural child’ does not inherit from their parents (Davoudabadi: Article 884 n.d.). The child thus enjoys other rights, but not the right to legacy. This legislation is based on a combination of Articles 1167 and 861, which together establish that inheritance is limited to when parentage is established, and according to encoded Shi’i rulings, parentage is not established when a child is born to unmarried parents (Davoudabadi: Article 1167 n.d.; Davoudabadi: Article 861 n.d.). This inheritance law has been subject to vigorous critique by researchers of family and Islamic law, and there are already multiple studies in Persian criticizing it on the grounds of its unfairness to the child (see, e.g., Ahmadi et al. 2018; Azimzadeh and Toghanipour 2011). There is, however, no record of efforts by the country’s legislative bodies to change the law.

Besides the child’s rights in the family setting, there are other social rights that a child born to unmarried parents does not enjoy. Studies in Iran and other countries have shown that unregistered children are deprived of education, health care, and other social, financial, and welfare services (Comandini et al. 2016; Todres 2003) exclusively accessible to people who can present a birth certificate. In 2020, parallel to the facilitation of registering children born to unmarried parents, the Iranian government also took steps to enable access to education for unregistered children (Kazemi 2020). It is not yet clear how this change of attitude and law has been practically implemented into the education system. Access to many other services, including receiving social security benefits, opening bank accounts, and getting insured, is still difficult, if not entirely impossible without a birth certificate. Social deprivations imposed by the unregistered status have long-lasting and severe consequences on the lives of children.

Besides these limitations, other forms of social deprivations apply to the Iranian context because of a specific interpretation of Shi’a Islam, according to which a person born to unmarried parents cannot occupy five key positions in society. These are, (i) Imam: a person who leads Islamic prayers); (ii) legal witness in important matters: a person giving testimony in court [the ‘important’ is not defined in the literature]; (iii) judge; (iv) leadership of the Muslim society: this refers to a person at the highest level of leadership (i.e., supreme leader); (v) Source of emulation [marja’e taqlid: the highest level of Shi’i religious authority who interprets Islamic texts and conveys rulings to his followers] (Kavianifard and Soheilabadi 2012). In my exploration of the grounds on which this discriminatory discourse is based, I came across a question asked by a follower from Ayatollah Makarem Shirazi [an influential cleric and a Shi’i marja’e taqlid] on his website’s questions and answers section. The answer to the question asked by the follower clarifies some of the hardliner views:

Question: ‘Why are illegitimate children [sic] deprived of some positions?! Although we know that illegitimate children [sic] have not committed any sin or transgression nevertheless, we see that they are blamed in different ways in Islamic texts! In addition, some people say: these children never go to heaven and won’t be blessed; is this, although we know that God who knows all, according to the verse “No soul burdened with sin will bear the burden of another” [Qur’an, 35:18] will not write anyone’s sin on another’s account—correct?!’

Response by Ayatollah Makarem Shirazi: ‘…illegitimate children [sic] are like those suspected of having a dangerous viral infection; such people are not only barred from taking over certain roles for the public interest, but sometimes their mere presence in society is also prevented. Because illegitimate children [sic] have a kind of predisposition for breaking the law and sin and rebellion; they may harm themselves and the Muslim society if they do not have proper education, a healthy environment, strong will, and resistance.’

[the question and the concluding lines of the response by Ayatollah Makarem Shirazi are translated from Persian by the author.]4

Ayatollah Makarem Shirazi’s viewpoint seems to be an extreme case and not representative of other Shi’i scholars, but representative of classic views by scholars who argued that children born to unmarried parents may not be equally fit for salvation (see e.g., Mohammad-Baqer Majlesi’s views and references to children born to unmarried parents in Bihar al-Anwar). There are other Shi’i scholars such as Ayatollah Fazel Lankaran5 and Ayatollah Alidoost6 who present arguments both for and against the deprivations above but do not offer an explicit conclusion. Many other marja’e taqlids do not directly address these deprivations in their teachings. However, as the above response indicates, an essentialist argument has been presented to claim a supposed inherent tendency to deviancy, which can be used to justify the imposed discriminations. In this view, since the parents’ relationship was not ‘legitimate,’ the child is considered not to have been conceived ‘purely’ [in Persian: taharat-e notfeh] (Baba Mohammadi et al. 2015), and this is presumed to potentially impact who the child grows to be. This is clearly a problematic perspective. Legal and religious researchers such as Mehrpour (2014) and Jamali (2014) have criticized these discriminatory discourses that deprive children on the grounds of their parents’ marital status and their conditions of birth. While some of the positions that children born to unmarried parents are deprived of may not be very common, the fact remains that excluding persons based on the conditions they were born in from any social position is, to say the least, discriminatory, othering, and stigmatizing. These positions may not have priority or popularity, but the exclusionary laws deprive children born to unmarried parents of their primary rights to be treated equally.

4. Discussion

This paper conducted a literature study and content analysis focusing on the legal codes, Shi’i rulings, and academic literature on child ‘legitimacy’ and the unregistered child phenomenon. The paper showed the consequences of the Iranian State’s marriage and parentage law on the birth registration process of children born to unmarried parents. I showed that because the parents’ relationship is considered zena, children born to unmarried parents are rendered ‘illegitimate’ as a result of which they are discursively and legally othered and stigmatized. Current laws not only do not protect these children from becoming unregistered but also ‘punish’ them by depriving them of their right to inherit from their parents and of occupying some key positions in society.

The legal precarity of children born to unmarried parents showcases the divide between religiopolitical conservatives and reformists in Iran. The reformists are represented by minority Shi’i clerics, some researchers of religion and law, and civil society, such as women’s rights advocates. This group is not the only resistant political group in Iran, but it is the most tolerated one, as it wants to formulate updated interpretations of Islamic law and implement change in the political, legal, and religious institutions of the country, and does not actively aim to topple the Iranian regime. Their attempts are often countered by those in power, the conservative clerics and politicians, who hold major positions of religiopolitical power, and insist on keeping the ideological discourses developed during the Revolution of Iran in 1979 intact (Mir-Hosseini 2002; Rahbari 2020a).

What needs to be made clear is that for some of the advocates of change in the legal system, the solution can, in fact, be found within Shi’i rulings. Among authors who see a potential for change within the current system, Ahmadi et al. (2018), Mehrpour (2014), and Azimzadeh and Toghanipour (2011) argue that the interpretations of Shi’i rulings do not provide enough ground to deprive children born to unmarried parents of inheritance and positions in the society. In addition, a top Iranian cleric, Ayatollah Saanei [a Shi’i marja’e taqlid] has ruled against depriving children born to unmarried parents of their inheritance (Ayatollah Sanei n.d.).

Ayatollah Saanei’s reformist rulings, such as this ruling on inheritance—as well as other rulings regarding temporary marriage, women’s inheritance, and rights—have long sparked criticism from political and religious conservatives who claim that his interpretations are examples of religious heresy (Rahbari 2020b).7 Since the 1979 Iranian Revolution, the conservative block has, for the most part, remained in control of some of the key political institutions in Iran, such as the judicial system and the Guardian’s Council—a powerful entity including (Islamic) jurists who monitor the compatibility of the legislation passed by the Parliament with Islamic law—which play key roles in establishing and enacting laws. Most recently, Iran’s Parliament and Presidency have also taken a conservative turn (Dorzadeh and Kamrava 2020; Jang and Hyondo 2021). This has made it increasingly difficult even for high-level reformist Shi’i clerics to voice their concerns about the traditionalist interpretations of Islamic law in the country.

Since it is practically impossible to estimate the number of children born to unmarried parents in Iran, this paper has not intended to make any claims about how widespread the problems related to child registration are. Additionally, this paper’s methodological choices and the lack of empirical data on children born into unmarried parents have limited its arguments. The research on the rights of children born to unmarried parents could especially be consolidated by narratives of potential unmarried parents or mothers who want to register or have registered their child successfully received a birth certificate. Instead, this paper aimed to show the legal and Shi’i discourses on the status of children born to unmarried parents and the consequences of the civil status of the parents for the child.

To conclude, the case I discussed in this paper illustrates how Iran’s reliance on hardliner and patriarchal interpretations of Shari’a law has led to the legal foundations that not only contest and counter human rights violations but sometimes even perpetuate them (Rahbari 2021). Unless a fundamental change in the country’s political system occurs, the path to legal reform passes through the re-interpretation of Shi’i Shari’a. This quest has sometimes been successful as women’s rights groups specifically have seen some fundamental gains over the years by appealing to and convincing the country’s religious authorities (see, e.g., Tavassolian 2017). Many other human rights campaigns in Iran have, however, remained unsuccessful. Especially when it comes to children’s rights, there is still a long way to go. The recent political shift that consolidated the conservative block threatens the prospect of fundamental legal change.