The Justice Ministry's decision not to accept the birth registrations for twin brothers born to a surrogate mother in the United States a year ago has raised serious questions about the adequacy of legal protection of the rights of such children in this country.

The twin boys belong to a married Japanese couple who signed a contract with a California-based surrogate birth brokering firm.

The couple received eggs from an Asian-American woman. They then fertilized the eggs with the husband's sperm and implanted them in the womb of the surrogate mother through in vitro fertilization.

The couple submitted to a Japanese consulate in the United States the babies' U.S. birth certificate that lists them as the parents of the babies, but the Justice Ministry had refused to accept the certificate on the grounds that it cannot determine a parental relationship.

There are no laws defining a mother-child relationship in Japan.

The ministry's refusal was in line with a 1962 Supreme Court ruling that the parental relationship between a mother and a child is based on birth.

The ruling was handed down after a mother filed a lawsuit seeking confirmation of her parental relationship with her biological child.

As the legal precedent was established at a time when surrogate birth through in vitro fertilization was not anticipated, many experts pointed out that the precedent may not be applied to all children born as a result of reproductive treatment.

Furthermore, a 1961 Justice Ministry instruction requiring authorities to confirm births by woman aged 50 or older also served as a reason for the ministry not to accept the birth registration as the woman in question is in her 50s.

But the instruction is believed to have been designed to prevent older women from submitting false birth notification to hide the fact that their unmarried daughters have given birth.

Simply put, the legal precedent and instruction, which did not envision the progress of modern reproductive technology, are out of date.

The root of the problem was authorities' failure to come up with measures to protect children born through advanced reproductive technology.

In the United States and Britain, rules have been established to address problems arising from surrogate births.

In California, a doctor may sign a birth certificate recognizing a woman who engaged a surrogate mother to give birth as the mother and then submit the notification saying that the child is the biological child of the married couple.

In Britain, a surrogate mother is temporarily recognized as the mother after giving birth to a child.

The client couple may file an appeal with the court to determine that they are the legal parents of the child.

Koji Ono, a law professor at Daito Bunka University, said the U.S. and British rules determine that it was beneficial for children if couples who had the desire to raise them become parents rather than determining parenthood only on the basis of birth.

In response to a report compiled in April by a council of the Health, Labor and Welfare Ministry that recommended banning surrogate birth, the Legislative Council announced in July a special Civil Code draft that says the woman who gives birth should be recognized as the mother of her child.

The report and the draft are tantamount to saying that there is no need to think about the rights of children born through surrogate birth, since surrogate birth is expected to be regarded as illegal.

But the appropriateness of surrogate birth is a separate issue from the rights of children born through such a method and must be discussed separately. How to deal with the rights of such children is not dealt with in the Legislative Council's draft.

Even if surrogate birth is banned in the country, people will go to overseas if it is available there.

As was mentioned in the report by the health ministry's council, the welfare of children should be given high priority in establishing control over reproductive technology.

The Justice Ministry's decision not to accept the twins' birth and recognize them on the family register runs counter to this principle.

As the Legislative Council's draft stipulates, if only women who give birth are recognized as the mothers of their children, similar problems may arise again.

Further thought needs to be given to reforming the legal system to protect children's status and rights.