A recent ruling that denied
posthumous recognition of the parental relationship
between a dead man and the boy he fathered through in
vitro fertilization performed with frozen sperm made
clear the necessity to set up legislation based on
social recognition.
On Nov. 12, Matsuyama District
Court rejected a woman's request to have her late
husband legally recognized as the father of a baby
conceived by in vitro fertilization after his death.
The woman's husband had his
sperm frozen before he died of cancer, and the woman
from western Japan, now in her 40s, became pregnant
after his death and gave birth to a boy.
Though the court recognised the
importance of guaranteeing the child's welfare, it
argues that current social values did not allow it to go
along with the woman's argument.
Initially, there were views in
judical circles that the court might recognize
posthumous paternity because the current trend in
judical decisions has been to give top priority to
children's welfare.
The Civil Code, which was
enacted 105 years ago, fails to take into sufficient
account the interests of children because it places high
priority on the legitimacy of family lineage.
However, with the number of
divorces increasing since the 1960s, there is a growing
number of disputes over children, over such issues as
which parent should have custody of children after
divorce. In light of such a tendency, children's
interests rather than parents' desires have taken
priority.
In the 1990s, there occurred a
series of child abuse cases that resulted in serious
outcomes before authorities separated children from
abusive parents. The law to prevent child abuse, which
was enforced in 2000, empowered the state to suspend
parental rights.
The Convention on the Rights of
the Child, which Japan ratified in 1994, backed up this
move. Article 3 of the convention stipulates: "In all
actions concerning children...the best interests of the
child shall be a primary consideration."
Wednesday's ruling acknowledged
the disadvantage the child might suffer because of the
absence of a legal father and showed a degree of
understanding for the necessity of securing the child's
welfare.
However, the child was born as a
result of in vitro fertilization after his father's
death using frozen sperm, a condition that was
inconceivable when the Civil Code was written.
Arguing that the fertility
process had completely lost touch with natural
pregnancy, the district court concluded that there is
yet enough social recognition to acknowledge the man
whose frozen sperm was used to conceive the child after
his death as the boy's father.
The progress in reproductive
technology has presented a difficult question concerning
the parental relationship.
The court cannot help but be
cautious in handing down the ruling because there is no
social agreement yet on this issue.
The ruling pointed out the need
to establish appropriate legislation, saying, "It is not
desirable to make a judgment based on obscure social
recognition, and thus it is necessary to set up
appropriate legislation as soon as possible."
Following the ruling, the Japan
Society of Obstetrics and Gynecology released a
statement that said because the society had no
provisions on frozen sperm, it would consider setting up
one in the future. Thus, the society virtually admitted
the necessity of promoting debate and setting up
guidelines on the issue in response to the ruling.
Takahide Mori, chairman of the
Ethics Committee of the Japan Society of Fertilization
and Implantation, said the society would start debating
the appropriate period to store sperm and the legitimacy
of posthumous reproduction to reach a consensus of
opinion within the society.
It is clear that the welfare of
the boy must be respected and guaranteed. The plaintiff
strongly demanded in the court that the boy's dignity as
a human being be secured in terms of having both
parents' names specified in family register. However,
unless due legislation is established, the issue of this
right will remain unaddressed.
On Nov. 7, it was reported that
the Justice Ministry had rejected an application by a
Japanese couple to register twin baby boys born to an
American surrogate mother as their children. The report
created quite a stir among medical experts.
Those working in the forefront
of reproductive medicine have been wavering over the
definition of the parental relationship.
The Health, Labor and Welfare
Ministry plans to draw up a bill that will allow the
provision of sperm and eggs by third parties, but bans
surrogate births and their commercial mediations.
However, the ministry stops short of referring to
posthumous reproduction.
With reproductive technologies
constantly advancing, the government must seriously
tackle the issue with a view to establishing a legal
framework based on social agreement, as proposed in the
Nov. 12 ruling.
