Adoption and surrogacy
Redefining the ethics of parenthood
By William Wetherall
First posted 1 January 2007
Last updated 18 July 2009
A child's mother is usually taken to be the woman who bears it. Determining its father is not as easy. A married woman's husband is usually presumed to be the father of any child she bears, while the father of an unmarried woman's child could be any man willing to recognize the child as his. These conventional rules are wrinkled by all manner of social, medical, and legal complications, including those arising from the advent of fertility alternatives involving everything from artificial insemination to egg, sperm, and embryo donation, and surrogate gestation. Not to mention DNA testing.
Such complications have no impact on place-of-birth nationality, but they can affect the determination of nationality based on kinship. Japan's family statutes do not yet effectively address reproductive technology issues. A government council has advised that Japanese family law, while placing importance on blood kinship, does not regard such kinship as most important, hence its provisions for legitimation through recognition or adoption. The council therefore found no reason not to recognize the legitimacy of parenthood resulting from donated eggs, sperm, and even embryos -- so long as the child in question issues from its registered mother's womb. In drawing the line at surrogacy, the council's concerns were ethical, medical and legal, not genetic.
In the meantime, the government and medical community have agreed to administrative guidelines that allow donation but prohibit surrogacy. And because the guidelines virtually criminalize surrogacy in Japan, some Japanese couples have gone overseas to parent a child through surrogacy. If they fail to persuade a Japanese consulate to register the child as theirs, they will not be able to bring the child back to Japan as a Japanese. Even though California law might decree that they are the child's legal parents, they may have to adopt the child under Japanese law and then naturalize the child, for nationality through adoption ended with the 1950 law. In May 2005, the Osaka High Court rejected an appeal by a Japanese couple claiming that their twin children, born in the United States through an American surrogate mother, should be Japanese, since Japanese law does not recognize surrogate kinship.
The meanings of a number of basic terms in the Nationality Law, such as "mother" and "father", are determined by other laws. Legal disputes over the nationality of a child born to a non-Japanese surrogate mother, say, do not originate in the Nationality Law, but in how "mother" is defined in family law. In many other respects, also, Japan's nationality laws rest on foundations of family law and family registration.
Parental kinship and guardianship are defined by family law, which as yet does not recognize surrogacy. Unlike the 1899 law, the 1950 law does not allow a child to acquire nationality through adoption.
Disputes over legitimation and acknowledgement in the Nationality Law created the impression that the issues were about nationality, but they were more essentially about family law. The same is true in cases involving attempts by Japanese parents to acquire nationality for a child born to a non-Japanese surrogate mother. Japanese family law does yet recognize a child born through surrogacy as the child of a woman other than the woman who gave birth to the child. Hence regardless of the surrogate mother's nationality, the child she bears will be treated under Japanese law as her child. Since Japanese law has not yet legalized surrogacy birth, its practice in Japan is virtually criminalized. Japanese couples who need to resort to surrogacy go overseas. Even when it is possible for the Japanese man to acknowledge a surrogacy child as his, the alien a child known to be born through surrogacy is regarded as the child of its biological mother. All manner of complications arise in cases involving Japanese couples who biological children of the w. In many other respects, also, Japan's nationality laws rest on foundations of family law and family registration.
Japanese laws and courts have regarded maternity, and what amounts to maternal recognition, as the act of giving birth to a child. Hence a child's mother is taken to be the women who bears the child.
If the father is a Japanese man, and if he recognizes a child born to a surrogate mother as his before or at the time of its birth, the child can be entered in his family register as a child born to the surrogate mother -- even if it can be proved that the man's wife was the source of the ovum. Doubts that he was the source of the sperm can also jeopardize his recognition.
A number of Japanese parents who have resorted to surrogacy contracts overseas have had to bring their surrogate-born children back to Japan as aliens, while surrogacy parenting remains legally unrecognized if not illegal in Japan. Related ethical issues will have to be politically resolved before Japan's family laws can be revised to accommodate new reproductive technologies and parental choices, and more social, less biological definitions of "family".