Academic journal article Washington International Law Journal

Redefining Motherhood: Discrimination in Legal Parenthood in Japan

Academic journal article Washington International Law Journal

Redefining Motherhood: Discrimination in Legal Parenthood in Japan

Article excerpt

I. INTRODUCTION

If you had stumbled across the scene playing out in a March interview with the Japanese newspaper Yomiuri Shimbun, you would not have immediately recognized the situation as something unusual: a young married couple, both in their twenties, the wife holding their brand new baby boy on her lap, with a woman in her fifties, clearly an adoring grandmother, looking on.1 In fact, the grandmother is also the baby's birth mother, having served as a surrogate for her daughter.2 Born without a womb, the daughter and her mother knew since high school that the daughter would not be able to have children in a traditional way.3 However, both desired the daughter to be a mother to her own children.4 To this end, doctors at the Suwa Maternity Clinic fertilized the wife's eggs with her husband's sperm and successfully implanted the eggs into the womb of her mother.5 Said the new mother: "There are a lot of women who suffer from the same affliction as me, as well as those who have their womb surgically removed. It's not right to put obstacles in the way of their happiness."6

Such a family faces many obstacles in Japan, as there are many social and legal implications involved in a family's fertility decisions. First, the family must find a doctor willing to perform the procedure. Although there is no law prohibiting surrogacy in Japan, the procedure is banned by the Japan Society of Obstetrics and Gynecology ("JSOG"). 7 Doctors who perform procedures prohibited by the rules of JSOG risk losing their license to practice medicine. Dr. Yahiro Netsu of the Suwa Maternity Clinic, one of the few doctors who performs the procedure in Japan, has already been expelled and reinstated once by JSOG.8

Next, the idea of surrogacy itself is controversial in Japanese society. While her child grew in her mother's womb, the daughter began to stuff her shirt so as to appear to be pregnant to disguise the surrogacy from disapproving eyes.9 The family did not reveal their identity when granting the interview. Although such interviews are rare due to intense stigmatization in Japanese society, this is actually the fourth documented arrangement between mother and daughter in Japan in the last ten years.10

Finally, after the birth of the child, he or she must be registered in the family's koseki, or family registry.11 Under the Family Registration Law, incorporated in the Japanese Civil Code, in this case the child will be registered as the child of the grandmother.12 The parents may only adopt the child, despite the fact that they are biologically the genetic parents of the child. 13 This risks additional social implications, as both adoption and infertility both are considered "impurities" which mar the family's koseki.14

In contrast, had the husband of the young couple, not the wife, experienced infertility problems, the couple could have sought out third- party donor sperm, and registered the resulting child under their own names in the family registry with relatively little legal interference.15

Scientific advances in the field of Assisted Reproductive Technology ("ART") create new opportunities for reproduction, including artificial insemination, in vitro fertilization, and surrogacy. 16 The continuing development of new technology challenges traditional Japanese notions of what it means to be a "parent." Some of these ART procedures, including artificial insemination, are accepted by the public and the government.17 Other forms of assisted reproduction spur controversy, however, over whether children born through surrogacy or adoption can be registered as the child of the applicant parents. 18 The Japanese government is currently studying the addition of official barriers to surrogacy and other forms of ART. Days after the interview in March, a panel studying surrogacy issued a report stating that surrogate births should be banned in Japan.19

At the same time that the use of ART procedures is discouraged, social and cultural forces, reinforced by law, compel couples to seek out ART procedures. …

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