Jakarta – The Constitutional Court's recent decision to grant paternal recognition to children born out of wedlock, is problematic for mothers of children conceived through rape, legal activists say.
Most victims of rape want to sever all ties with the perpetrators, and many also seek abortions, they claim.
Erna Ratnaningsih, former head of the Indonesian Legal Aid Foundation (YLBHI) and Ratna Batara Munti, director of the Jakarta chapter of the Legal Aid Office of the Association of Indonesian Women for Justice (LBH APIK), were responding separately to a statement by the court's spokesman that the ruling applied to all children born out of wedlock, including those conceived as a result of rape.
Court spokesman Akil Mochtar had confirmed that the Court's Feb. 17 ruling means that all men, including rapists, must recognize their offspring if they can be conclusively proven to be the biological fathers.
"Basically, the [ruling] guarantees every child in our country their constitutional rights," Akil told The Jakarta Post last week. He was one of the justices on the panel which granted the request for a judicial review filed by former dangdut singer Machica, aka Aisyah Mochtar.
The court noted that Machica was married in an Islamic ceremony (nikah siri) to former state secretary Moerdiono, but which was unregistered with the state.
The ruling annulled Article 43 in the 1974 Marriage Law, which had stated that children born out of wedlock only had civil ties with their mothers and the mother's immediate family. The court ruled that this contravened the Constitution, which guarantees equality before the law.
The explanatory section of the ruling refers only to marriages based on "religion and beliefs" which were unregistered with the state, such as the nikah siri; it does not refer to children born to a cohabiting couple or children born as a result of rape.
The announcement of the initial ruling led to outrage, with critics saying the court condoned adultery. The court has denied this, saying that the ruling should only be interpreted regarding the rights of children born out of wedlock.
The Indonesian Child Protection Commission (KPAI) has estimated that 50 percent of Indonesian children do not have birth certificates, partially attributed to children of unregistered marriages.
Erna said applying the ruling to children of rape victims would be strange, as most victims wanted nothing to do with such children's biological fathers.
Erna, who is running for commissioner of the National Commission on Human Rights (Komnas HAM), urged the Supreme Court to issue a clarification of the ruling.
In 2011, the National Commission on Violence against Women (Komnas Perempuan) received 19 complaints concerning children born out of wedlock, involving 14 cases of rape, four cases of women trapped into marriage to men who were still wed to another woman and only one case of unregistered marriage.
The Commission stated that in all the reported cases, not one of the fathers had fulfilled their legal and financial obligations to the children.
Meanwhile, Ratna said that Akil's statement was controversial. She said most rape victims reporting to her foundation were so distressed they sought abortions.
"The revision of the Health Law and a fatwa from the Indonesian Ulema Council (MUI) allows these women to have abortions because the 'relationships' were not consensual. I think it highly unlikely then that rape victims would want to acknowledge the rapists as their babies' fathers. That only happens in novels or TV series," she said.
In 2009, the House of Representatives revised the 1992 Health Law that had prohibited abortion to permit it only in cases of rape or medical emergency. (asa)