TAKAMATSU, Kagawa Pref. – The Takamatsu High Court on Friday overturned a district court ruling and recognized a boy who was born through in vitro fertilization using a dead man’s frozen sperm as the child of the deceased.
The lawsuit, which seeks posthumous legal recognition of the paternity of the child, was filed by a woman in western Japan who has only been identified as being in her 40s. The boy is now 3 years old.
The woman gave birth to the boy in May 2001, having used sperm taken from her husband and frozen in 1998 before he began undergoing chemotherapy for leukemia. He died of the disease in September 1999.
She brought the frozen sperm, which had been kept at a hospital, to another hospital in the summer of 2000, but did not inform that facility that her husband had passed away when she underwent the in vitro process, the court said.
Although the Civil Code allows for the legal recognition of children conceived through in vitro fertilization while the father in question is alive, there are no clauses stipulating how to deal with the frozen sperm of a dead man.
There has been considerable speculation, therefore, on how the judiciary would rule with regard to aspects such as social norms and the child’s welfare.
In handing down Friday’s ruling, presiding Judge Nobuhiro Matsumoto recognized that the husband had consented to having a child though in vitro fertilization using his frozen sperm while he was alive.
“There is no reason to make it a condition (for parental recognition) that a father must be alive at the time of pregnancy, and there is a biological blood relationship between the boy and his father,” the judge said.
He also noted that recognizing the boy as the son of the deceased will allow him to gain rights to inheritance per stirpes, and is thus also beneficial from the viewpoint of the child’s welfare.
Last November, the Matsuyama District Court dismissed the woman’s request that the boy be recognized as her husband’s child, citing a lack of social acceptance for recognizing a dead man as the father of a child born in this fashion.
The district court added that it could not determine whether the man had agreed to become a father via in vitro fertilization after his death.
The plaintiff appealed the district court ruling.
A prosecutor at the Takamatsu High Public Prosecutor’s Office, representing the public interest, served as the defendant in the appellate trial, asking the court to reject the lawsuit.
The woman told the appeals court that, while the Civil Code does not deal with cases such as hers, the parental relationship between her late husband and the child should be guaranteed under the Constitution and under the U.N. Convention on the Rights of the Child.
She also stated that her husband had agreed to an vitro fertilization procedure after death.
The woman first sought to register the baby as the legal child of her and her late husband. She lost that case at the district, high and Supreme Court levels.
The woman then filed a lawsuit in June 2002, seeking posthumous recognition of the parental relationship between the child and her husband. Suits of this nature can be filed within three years of death.