Earlier this month, the ruling coalition put together a bill to change part of the Civil Code that determines the paternity of a child under certain circumstances. The planned revision, which editorial writers supported for its acknowledgment of practical reality, nevertheless split the Liberal Democratic Party along ideological lines, and the bill, which was expected to sail through the Diet, now seems to be dead in the water.
Article 772 of the Civil Code, which was enacted in 1898, states that a child born to a woman within 300 days of her divorce is legally regarded as the child of her ex-husband, even if the woman has remarried in the meantime and her new husband is the biological father. Though this law has been a source of contention for decades, it has never seriously been challenged within the government until now. In recent months the media has focused on a number of cases in which the names of newborn babies of remarried women were placed in their ex-husbands’ family registries. Some politicians took note.
These lawmakers and the media in general regard the law as an anachronism that makes no practical sense nowadays, especially given the rise in the divorce rates and improvements in medicine that make premature birth less dangerous and thus more common, meaning more babies of remarried women arrive before the 300-day cutoff point. Even the usually conservative Yomiuri Shimbun said that the law should be changed to conform to current conditions.
Almost all the editorials, including the one in The Japan Times, also say that the law once had a practical purpose, namely to force ex-husbands to own up to their parental responsibility for children they may have fathered before a divorce was finalized. In real life, this consideration has never made much difference. According to government figures, only about 20 percent of divorced single mothers receive child support from their ex-husbands. And in terms of contesting paternity, an ex-husband has the advantage. If he doesn’t want the child in his registry, he can deny paternity unilaterally. But if his ex-wife doesn’t want the child’s name entered into his registry, she has to ask him to deny paternity, and since many divorced women don’t want to speak to their ex-husbands they don’t register their babies. Children whose names are not entered into family registries cannot apply for certain government services, including passports, though a few local governments have defied the Justice Ministry in this regard.
Citizens groups that are calling for changes in the Civil Code claim that conservative hardliners in the government use children’s legal status to bend women’s wills to their narrow and unrealistic concept of sexual morality. The backlash produced by the proposed revision seems to support this claim.
As reported in the Mainichi Shimbun, the LDP’s coalition partner, New Komeito, formed a project team (PT) on March 7 to review Article 772. Some LDP members made their own PT and approved the draft that New Komeito came up with, adding a provision that would also change Article 733, which prevents women from remarrying less than 180 days after a divorce. The two PTs combined into one ruling coalition PT and said it would submit the draft bill to the Diet by the end of April.
However, on April 5 the chairman of the LDP’s Policy Research Council, Shoichi Nakagawa, ordered the PT to “restudy” the bill. “I don’t even know who these people are,” Nakagawa said about the PT members, who were so confident the bill would be accepted that they neglected to circulate it among LDP members to form a consensus, which is the normal procedure when drafting a bill. After talking to Nakagawa, the PT dropped the proposed revision to Article 733, but indicated it would still submit the rest of the bill.
The next day, Justice Minister Jinen Nagase said that the law was the law and he didn’t think “the people” would support a bill “that can change the family and marriage systems.” This was an about-face from his stance in January, when he told reporters that because of “changes in our perception of the family” Article 772 needed to be reviewed. Now, instead of changing the law, the ministry said it would send notices to local governments permitting them to recognize a new husband as the father of a baby born within the 300-day limit if he and the mother submitted certificates proving that the baby was conceived after the woman’s divorce was finalized. Nongovernment organization mNet held a press conference and said that such permission would only affect 10 percent of the babies born to remarried mothers before the 300-day cutoff. An expert at the press conference said, “Divorces are time-consuming. In reality, many women become pregnant [with their new partners] before their divorces are finalized.”
Prime Minister Shinzo Abe effectively hammered the last nail in the bill’s coffin when he told reporters that the matter needed to be discussed further because it affects “the marriage system.”
It was a rerun of 1996, when LDP hardliners shot down another proposed revision to the Civil Code that many thought would pass. In that case, hardliners objected to a change that would allow married couples to use separate names. The Civil Code is sacred to these men, which is why the Health, Labor and Welfare Ministry said Friday they will allow municipalities to give government services to children without family registries (but not passports). They’d rather do that than change the law. According to the Asahi Shimbun, Nakagawa said, “With this revision [of the 300-day limit] you’ll have all these children who are the products of extramarital affairs.” He also questioned the viability of DNA testing to determine paternity, as if Article 772 were somehow more foolproof. The Asahi quoted another “top LDP official” anonymously as saying, “It’s outrageous — the idea that after getting a divorce you have a baby with another man.”
Common sense doesn’t stand a chance against outrage. The purpose of a Civil Code is to lay out procedures, but the hardliners see it as something more: a means of social engineering, a way to correct what they believe are immoral tendencies, particularly among females. It’s no wonder Japanese women aren’t having children.