If the celebration over the birth of Prince Hisahito has proved anything, it’s that “Who’s your daddy?” is one of the most important questions in Japan.

Though Princess Kiko has rightfully received all the credit for producing a male heir to the throne, the whole point is that she’s married to the man who’s second in line to the Chrysanthemum Throne. As a matter of fact, since her husband Prince Akishino is not the immediate successor, it isn’t entirely clear whether or not Hisahito is next in line after him since the heir apparent, Crown Prince Naruhito, isn’t his daddy.

This may sound like an academic issue, but the question of paternity trickles down to the bottom of the food chain. It certainly pertains to the Supreme Court’s recent decision to dismiss a case brought by a woman who wanted authorities to acknowledge her late husband as the father of her son, even though the boy was born three years after the husband died.

The heart of the problem is the family registration system, or koseki, in which relationships within a family are designated and recognized by law. Before the woman’s husband died from leukemia in 1999 he had his sperm frozen because he was aware that the treatment he received might damage his ability to procreate.

Sometime after he died the woman used the sperm to fertilize one of her eggs and in 2001 gave birth to a boy. She tried to have the baby’s name registered in her koseki as the son of her and her late husband, but local authorities rejected it. According to the Civil Code, a baby born more than 300 days after the end of a marital relationship does not qualify as a baby born of that relationship.

The mother lost her first lawsuit in Matsuyama District Court, but won it on appeal at the Takamatsu High Court in July 2004. Then it was the prosecution’s turn to appeal, and the Supreme Court, on Sept. 4, reversed the high-court ruling, saying that the parent-child relationship represented in this case was not “envisaged under the Civil Code.”

The government does not acknowledge the dead husband as the baby’s father, which means the baby is officially illegitimate. This case has been followed fairly closely by the media. However, in the same week the Supreme Court also ruled on two similar cases that received much less coverage.

On Sept. 8, it also dismissed an appeal by a woman who became pregnant with her dead husband’s sperm, though in her case she had the procedure done in the United States. She asked the Osaka Family Court to recognize her partner, who died in 2001, as the father of the child, and when they rejected her request she appealed to the Osaka High Court, which upheld the family court’s decision. In this second case, it isn’t clear from the coverage if the couple was married, though the deceased partner is referred to as “chichinooya (father parent)” in the Mainichi Shimbun.

In a third case, the presumed father is simply referred to as “a man” because it is clear that he and the mother were not legally married. In this case, the mother claimed that before he died, her partner agreed to the fertilization. Since there seems to be no written document attesting to this agreement, it’s difficult to prove, but the Tokyo High Court judge who rejected the first appeal last February implied that it doesn’t make any difference, since whatever the man said was rendered void when he died.

The Mainichi discussed the issue in a related editorial. The basic problem, said the newspaper, is that there is no law governing in vitro fertilization. Whatever rules are in place have been improvised by the medical industry, and they aren’t consistent.

One of the reasons the courts rejected the Takamatsu case was that it couldn’t be determined that the husband “consented” to have his sperm used for in vitro fertilization following his death. According to the Mainichi, it is the responsibility of the hospital that performed the procedure (perhaps improperly, since Japanese doctors in principle do not conduct test tube fertilization for unmarried women) to make clear to any man who has his sperm frozen that consent becomes a gray zone in the event that he dies.

The Mainichi’s position is that the laws need to be clarified so that “such cases are not repeated.” However, clarifying laws with regard to medical procedures will not necessarily prevent mothers from bringing these kinds of lawsuits unless the Civil Code itself is amended, and that’s unlikely. For years, the United Nations Human Rights Commission has been pressuring Japan in vain to amend the Civil Code with regard to children born out of wedlock.

What these mothers want is clear. They want their children to grow up without the stigma of illegitimacy, which, as the UNHRC has pointed out, remains a legally sanctioned reality in Japan. Because illegitimacy is codified in the koseki and it remains the basic proof of one’s existence under Japanese law, it is easy to identify anyone born out of wedlock.

These women are not necessarily being provocative. By suing the government to have their late partners acknowledged as the fathers of their children in the koseki, they automatically demonstrate that they accept the koseki as a legitimate document of identification, even though it dictates that only the authorities can designate the father of a child.

The reason the koseki is sacrosanct is that it is a reflection of the hierarchical social system symbolized by the Imperial family. But as more people turn to in vitro fertilization and other medical options as a means of making babies they couldn’t otherwise have, the legal ramifications will become, in the words of the Mainichi, more of a “headache.”

Until the irrelevant koseki system is done away with, “Who’s your daddy?” will always mean more than “Who’s your mommy?”

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