Reader G.H. from Peru writes: I’m doing research on paternity systems around the world, and I was wondering if you could help.
“This may not be a big issue in Japan but it is in the Occidental world: fathers who don’t want to recognize their children. So a paternity demand starts and then a DNA test is ordered by a judge. In some countries it has become mandatory to take the test, and if the man refuses, he is declared father of the child. But some countries are against this being mandatory. I would like to know how it works in Japan, please.”
This inquiry begs two questions. The first is: Is a DNA test mandatory in order to prove the biological parent-child relationship in paternity cases in Japan? The other question is: Is it mandatory for a parent or child to have a DNA test, even against their will, in such cases?
The quick answer to both questions is “no,” but before I explain the answers in detail, let me give you a brief explanation of the recognition process, since in several places — like the Philippines, China, New Zealand and Ontario, Canada — they do not have such a system.
The recognition process is a procedure to establish the father-child relationship legally. In a case where an unmarried woman gives birth or a husband denies the father-child relationship of a child born to his wife, the child is considered fatherless under Japanese law. If the actual father then recognizes the child, this legally establishes the father-child relationship. If the father refuses to recognize the child as his, the mother or the child can file a claim for recognition to the family court.
That is called forced recognition. In the countries mentioned above, the legal father-child relationship is established without the need for the step of recognition — such as by virtue of the fact that the assumed father was married to (or only recently separated from) the mother, for example.
In most child-recognition cases in Japan, the judge will ask the assumed parents to take a DNA test. This is because a DNA test is the most reliable evidence to prove the biological relationship between child and parent.
But this is not the only option: The mother can also prove the father-child relationship if she can convince the judge — beyond reasonable doubt — that she had sex with the man during the time when she got pregnant, and if the blood type of the child makes sense as the result of a possible union between the suspected father and birth mother. (For example, if both parents’ blood type is A, the child’s blood type must be A or O.) The man can attempt to rebut this, denying he had sex with the mother or admitting it but claiming she also had sex with other men during the period when she got pregnant. The key evidence is the sex; the blood type is supplemental.
That was the traditional way of proving the biological relationship in court recognition proceedings before DNA testing was available. And it is still a legally acceptable way to determine paternity. In other words, family law in Japan has not changed despite the development of DNA technology.
In Japan there are no regulations that allow a judge to order one party to have a DNA test against their will. However, judges love to have DNA tests in recognition proceedings because the proof is simple and clear. If the man refuses to take a test, the judge will ask him why repeatedly, and may eventually decide that the man is not credible or honest. In some cases, a judge will even decide that this reticence to take a DNA test is indirect evidence that the man is the father. In that sense, refusing to take a test can backfire on the suspected father. Still, the burden of proof is on the plaintiff — the child or mother — to convince the judge that the man is the father.
Before resorting to court, however, it is mandatory to go through mediation first, in the hope of reaching mutual agreement without the need to go to trial. If the supposed father does not show up to the mediation sessions, the judge will decide that an agreement between both parties is unachievable and declare the mediation over. Then the mother can file litigation and the judge will make a decision, which is binding on both parties. Thus, in the long run, not showing up to mediation will not help the father’s case. And once a father has been legally recognized as such, he becomes responsible for child support and other obligations.
Laws concerning the parent-child relationship are complex. Plus, family law in Japan has not kept up with advances in technology. In fact, the main principles in Japanese family law were established about a century ago based on the French legislation at that time, which had its origin in Roman law.
In Roman law, the parent-child relationship is determined according to the following principles: The mother is the female who gave birth to the child, and the father is the male who is married to the mother. This means that being the biological father does not necessarily mean being the legal father, and vice versa.
This system worked to make the father-and-child relationship within married couples stable for thousands of years before the invention of the DNA test, but today it is clearly outdated. In some countries, family law has adapted to the status quo, but in Japan, lawmakers are notoriously conservative when it comes to changing laws, particularly when they affect the family. Here are some examples of the contradictions we are facing today:
The first area of confusion concerns the denial of the father-child relationship by the husband and its limitations. In a case where a wife gives birth to a child of a male other than her husband, the child is legally considered the child of the husband — unless the husband files an objection with the family court within a year of learning of the birth. In 2014, the Supreme Court ruled that after the time limit has passed, with no objection having been filed, the established father-child relationship cannot be nullified even if a DNA test later makes clear that there is no biological relationship.
On the other hand, precedent has established that, in a case where a married couple has not had the opportunity to have sex — for example, if the husband was abroad at the time of conception — the child shall not be deemed to be the child of the husband. In such a case, the legal child-father relationship can be annulled regardless of the one-year rule. The mismatch between these two rulings has been widely criticized.
A second problem concerns surrogate mothers. Perhaps surprisingly, there is no law that mentions surrogate motherhood in Japan. So, the two-millennium-old Roman principle still rules: The woman who provided the egg is not the mother; the one who gave birth is. So, if a mother turns to a surrogate to carry her baby to term, she must then legally adopt the baby after birth to be considered the child’s legal mother.
Akira Ishizuka is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (www.t-pblo.jp/fiss; 03-6809-6200). FISS lawyers address readers’ queries once a month. Your questions and other comments: email@example.com