Law still a long way behind fertility boom

As the population declines, the number of domestic businesses involved in fertility is growing, giving birth to a slew of additional problems.

Government statistics show the country’s population dropped by 215,000 last year, as people are waiting longer to get married and have children.

The situation is causing so much alarm among government officials that one city is now offering subsidies to women who want to freeze their eggs and try in vitro fertilization at a later date.

A Kafka-esque case currently being contested in court has come to highlight how the country’s legal and regulatory system has completely failed to keep up with recent developments.

A number of questions come to mind: When a couple agrees to have an IVF, who owns the sperm? Do sperm have rights? Can a wife take sperm without telling her husband and use it to have a child? Is that fraud?

In February, Japanese-American businessman Eric Young filed a lawsuit against one of Japan’s largest fertility clinics, K Clinic, asking for damages and access to all the clinic’s medical records so that he can verify who is the mother of his son: his ex-wife or her younger sister — or both of them?

The boy, who was born on June 24, 2008, was conceived via in vitro fertilization. Three years later, the couple conceived a second child via in vitro fertilization with the help of K Clinic in Tokyo’s Shinjuku district, although his wife miscarried.

The boy’s parentage was cast in doubt after the Tokyo Family Court ruled that Young’s former wife had swapped her husband’s sperm with those of her of lover without his consent or knowledge when trying to conceive her second child. In addition, the court ruled, she replaced her eggs with those from her younger sister.

The sperm that had been deposited by Eric Young was allegedly discarded. The whole debacle was covered extensively by weekly magazine Shukan Gendai.

Young now wants to know whether it was his sperm that was combined with the eggs of his sister-in-law for the first pregnancy. K Clinic has refused to divulge any records related to the procedures, citing the country’s personal privacy laws.

“(It’s) an interesting and highly unusual case that raises many questions,” said Robert Klitzman, director of the bioethics masters program at Columbia University.

Complicating the matter, the clinic had advised Young and his wife that they could use an in vitro method that combined the “white” of a younger woman’s egg (the mitochondria) with the “yolk” of his wife’s egg, resulting in a child that some people might consider to have three parents. On Feb. 3, CNN reported that U.K. lawmakers had approved such a procedure.

In the first court session in April, K Clinic’s lawyer claimed the clinic had no records of whose eggs or sperm were used to produce Young’s son. In written documents submitted to the court, the clinic admitted it didn’t have a system in place to verify the identity of either eggs or sperm donors at the time.

Young’s attorney claimed his client had a right to know what was done with his sperm, and whose egg was used in combination with that sperm. He claimed that sperm had “personal and moral rights” known as jinkakuken, which are guaranteed by the Constitution.

“It’s half a life and since sperm cannot speak for itself, we are representing the sperm on behalf of its guardian — the father,” attorney Nobayasu Ogata said. “A failure to disclose the information on what was done with my client’s sperm by the clinic is not only deplorable, it’s unconstitutional.”

Neither K Clinic or Young’s former wife responded to requests for comment via email, fax, telephone and requests made via the firm’s lawyers.

“With minimal government oversight and a lack of internal regulations, (K Clinic) enabled the submission of faked identities and the unauthorized switching of the sperm and eggs of their patients,” Young said. “If they aren’t keeping records, then we will have situations where a child might never know who his/her true biological parents are.”

The country’s laws a long way behind the booming fertility industry. Currently, for instance, no law exists that establishes a legal relationship between a child born to a surrogate mother and the man and woman whose genetic material was used to conceive the child.

Last year, the Supreme Court ruled that even if a DNA test proves that a father and child are not related, the father will still legally be the child’s parent based on the Civil Code’s definition of legal paternity. In other words, a man is financially obligated to provide for a child born to his wife even if it is revealed that the sperm used to conceive it came from another man.

In the written arguments submitted to the court, K Clinic argued that if Young claimed the second pregnancy was not achieved with his sperm, there was no basis for him to claim emotional damages or demand that the medical records be released.

“We have a duty as doctors to protect the privacy of our patients,” the clinic said. “If the ex-wife secretly provided a third party’s sperm to the clinic, (we) can also be thought of, like the plaintiff, a victim deceived by the patient. ”

The ruling coalition government is attempting to create a legal framework to address questions such as how to define parenthood and whether a child has a right to know his or her genetic parents.

According to a November article in the Mainichi Shimbun, the Liberal Democratic Party approved a bill that would require fertility clinics to register with the government.

Clinics that do not comply with government guidelines that have yet to be created could have their licenses revoked under a law that has yet to be approved.

In the meantime, men wishing to have children via an IVF who are concerned about mix-ups may wish to think about color-coding their sperm or, at least, donate a label maker to their clinics. It’s nice to keep track of these things.

Dark Side of the Rising Sun is a monthly column that takes a behind-the-scenes look at news in Japan.