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Japanese tradition denies surrogacy

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Most major media covered the March 22 Tokyo news conference where Sachiko Kishimoto of the nonprofit organization Oocyte Donation Network (OD-Net) explained how a woman in her 40s had recently given birth to a daughter who had been conceived using the woman’s husband’s sperm and an egg from a third party. Though there have been instances in Japan of women giving birth by using the eggs of friends or relatives, this was the first publicized case in Japan of a baby successfully coming to term with the help of an anonymous egg donor.

The purpose of the news conference was more than just to announce a first in the annals of Japanese medicine. As Kishimoto pointed out, there are no laws governing infertility treatments using donated eggs from third parties, and while the Japan Society of Obstetrics and Gynecology deems the practice ethically unacceptable, some doctors nevertheless carry out these treatments. Kishimoto called on the government to legalize and regulate such therapy, as well as address the kind of parent-child relationships that will result from them. Without legal guidelines, women who desire this kind of treatment may be discouraged from seeking it.

Japan tops the world in the number of women who undergo infertility treatment, while at the same time it also has the lowest success rate. The reason for this discrepancy is age. Japanese women who undergo treatment are older on average than women who do so in other countries, owing mainly to the fact that Japanese women are marrying later in life and, unlike in many other countries, almost no one has a baby here if they’re not married. The reason for the low out-of-wedlock birthrate is the family registration system (koseki), which legally stigmatizes children born to unmarried women.

However, according to an article in the April 20 edition of Tokyo Shimbun, the government is now thinking of extending subsidies for infertility treatments, which are not covered by national insurance, to common-law couples. At present, only couples whose marriages are recorded in family registers can receive such subsidies. Health Minister Yasuhisa Shiozaki said in the Diet that Japan should “accept a more diverse family structure,” as other countries do, but added cautiously that he isn’t sure “if such a movement can take place in Japan.”

In the March 25 edition of the Asahi Shimbun, Dr. Osamu Ishihara, a professor at the Saitama Medical University, agreed with Kishimoto that new laws need to be implemented to “address the changing structure of families in Japan.” Assisted reproductive technology (ART) has made great progress in the past several decades, with 400,000 babies conceived in vitro and then born in Japan since 1983. It is not known how many of those children were conceived using donated sperm or eggs, but it seems only a matter of time before LGBT couples will be allowed to marry or otherwise legally cohabitate, and they will be able to use this technology to start families with the help of donors and maybe even surrogates.

The main obstacle is the primacy of the family register in defining not only what constitutes a family, but also what legally defines a father and a mother. As Ishihara explains, the Civil Code in which the current definitions are explicated was written in the 19th century, when ART did not exist.

In the same Asahi interview, Yuri Hibino, an assistant professor at Kanazawa University, said that there are already seminars in Japan for LGBT people who want to learn about surrogacy and egg/sperm donation. Many Japanese go overseas to take advantage of such treatments and services, but so far they are only discussed by the media, which tend to focus on sensational cases, such as the Japanese man who sired 16 children in Thailand via multiple surrogate mothers. These stories have the effect of highlighting the exploitative nature of ART in developing countries, where poorer women earn money helping first-world people realize their dreams of having a family. Australia, acknowledging this reality, is considering making it illegal for citizens to produce offspring via surrogate mothers in foreign countries.

Hibino says there are no reliable statistics regarding the number of Japanese who go abroad seeking ART, but she assumes that as the age of women giving birth for the first time has increased, more of these women have sought treatments and alternative solutions overseas. In any event, thanks to the media, those who are interested in such treatments know all about them even if the government seems unwilling to address the matter. Two years ago, in response to new infertility treatments, the health ministry drafted a bill fortifying the legal definition of a parent, but it has yet to submit it to the Diet and doesn’t seem to be in a hurry to do so. Nevertheless, the bill states that the mother of a child is defined as the woman who gave birth, meaning that surrogacy would cause problems.

Since fathers are acknowledged as such only when they are married (or, in some cases, were married) to the woman who gives birth to the child in question, problems will also arise for LGBT couples unless they are allowed to legally wed or the more tolerant approach to common-law relationships mentioned by Shiozaki is extended to the koseki.

Judges who hear cases involving parentage always say they try to rule in the interests of the child, so another legal consideration regarding new family structures is the right of children to know their provenance in the event they were the product of donated sperm/eggs, borne by a surrogate mother or adopted. Many governments in other countries now grant children that right when they reach a certain age.

Since there is still a social stigma attached to raising children not related by blood, it may take time for such rights to be recognized, but as Kishimoto stated, it is a matter that has to be addressed, regardless of whether or not the government really wants to.