Joe Jones on surrogate mothers and J citizenship (UPDATED)

mytest

Hi Blog. In his fascinating new JAPAN LAW blog by friend Joe Jones (of Mutantfrog blog fame), charting developments which interest the foreign lawyer (gaiben) community, we have yet another facet of Japanese citizenship up for dispute. The trend for infertile couples to seek Surrogate Mothers (i.e., and at the risk of sounding a bit crass: borrowing another woman’s womb to bring a child to term after in vitro fertilization and surgical impregnation).

Japan’s Supreme Court recently ruled that the woman giving birth, not the woman who contributed her DNA, is to be recognized as the legal mother. Now throw in the new question of paternity (“he’s my dad, but she’s not my mom… er, what?”) and you have yet another forehead-slapper from our ever-sagacious judiciary.

Defeats the whole purpose of Surrogate Motherhood, in my view, and throws in extra monkey wrenches should Japanese wish to use extranational surrogates to help with Japan’s low birthrate. (This is precisely what happened; see article from China Post below Joe’s writeup.)

The Japanese government (and the popular public) has long had the unofficial attitude that the uterus is the Property of the State, not the property of the mother (shikyuu (or hara) wa karimono) (See also “WOMENSWORD” by Kittredge Cherry, p 87-88). So I guess this is the next logical extension.

I blog this even though it is not really a foreigner issue (except to say people had better not outsource overseas if they want their babies to have Japanese nationality, let alone legal ties to mom). But definitely a citizenship issue in Japan. And it’s a great excuse to notify readers of Joe Jones’s new blog.

UPDATE APRIL 12: AND NOW WITH THE PARENTS REFUSING TO REGISTER THEIR CHILDREN, IT *HAS* BECOME A FOREIGNER ISSUE–BECAUSE THEIR CHILDREN HAVE BEEN DENIED JAPANESE CITIZENSHIP. SEE UPDATE AT VERY BOTTOM

Turning the keyboard over to Joe:

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Surrogate children are the children of the surrogate
Posted by Joe Jones under Family Law, Supreme Court

The Supreme Court ruled on March 24 that children born to a surrogate mother are not legally the children of their biological parents. The Court came to this conclusion based on the Civil Code provision (art. 772) that maternity is recognized by giving birth to the child. The Court also deemed that enforcing a US court order which reached the opposite conclusion would violate public policy. (PDF of decision in Japanese) This overturns a Tokyo High Court ruling passed down in October, which recognized the parental rights of the biological parents.

The story here is not that the Supreme Court is against surrogate parents. Rather, they give priority to strict construction of the Civil Code, which was drafted long before surrogate parenting was on the horizon. This viewpoint almost invites the Diet to pass a new statute to fill out this hole… an especially likely proposition when you consider that the mother of these children is a TV personality who will probably push for public support. Prime Minister Shinzo Abe is being characteristically mum about the whole thing, however, so this may require more publicity before it moves forward.

Why not adopt? For one thing, the children’s “natural mother” would forever be recorded in the family’s koseki (family register), the document which evidences their relationship. Paternity may be an interesting issue as well. Under the Civil Code, there is a presumption that a child was sired by the husband of its mother. The mother’s husband may disavow paternity, and another man may claim paternity, but either claim must go through the Family Court, one of Japan’s more well-traveled bureaucratic nightmares. Until the paternity of the biological father is established, the children may not even be construed as Japanese citizens.

See PDF of the decision at
http://www.redhead.jp/japanlaw/2007/04/03/surrogate-children-are-the-children-of-the-surrogate/

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Japan court rejects surrogate twins
The China Post 2007/3/24
By Carl Freire TOKYO, AP
http://www.chinapost.com.tw/news/archives/asiapacific/2007324/105406.htm

Japan’s Supreme Court on Friday rejected a lower bench’s ruling that would have allowed a Japanese couple to register their twin sons — born in the United States to an American surrogate mother — as their own.

The nation’s top court struck down a September 2006 Tokyo High Court decision ordering a local government to accept Aki Mukai, a television personality, and her husband Nobuhiko Takada’s registration of their two boys, according to a copy of the ruling posted on the Supreme Court’s Web page.

The Supreme Court cited in its decision a Japanese law that presumes the woman who gives birth to a child is its mother.

Surrogate births involve removing an egg for fertilization and implanting it in another woman who carries the baby to birth. Mukai can no longer have children of her own after undergoing a hysterectomy because of cancer.

Friday’s ruling upheld a November 2005 Tokyo Family Court verdict that found in favor of the local government’s decision to reject their registration request. Local authorities had refused to register the twins because the Justice Ministry said Mukai could not be recognized as the boys’ mother.

In a message on her Internet home page, Mukai said she had “expected the Supreme Court to hand down a conservative ruling,” but added she wanted to reserve further comment until she had a chance to study it more closely.

Prime Minister Shinzo Abe said the case highlighted the need for discussion and debate.

“How we should think about the parent-child relationship is a fundamental problem for us as human beings,” Abe told reporters Friday evening.
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ENDS

UPDATE APRIL 12, 2007

TV show Tokudane this morning did a long report on Mukai Aki and Takada Nobuhiko, the plaintiffs in the abovementioned cases.

The news is that they refused to file paperwork to acknowledge the paternity of husband Takada over their two children within a deadline, which was today.

Meaning that now they are the proud parents of two American (and only American) citizens, since the courts have refused Mukai maternity status, and there is no other way to establish citizenship (except by legal adoption) through the Koseki system.

They refused to file the paperwork because, according to the show:

1) The mother of the children would be listed as “Cindy” (the surrogate), not Mukai Aki.
2) “Cindy” legally relinquished all ties to the children, and a Nevada court established the full parentage of Mukai and Takada over the twins.
3) They promised both Cindy and the courts that “Cindy” would be fully left out of future proceedings.
4) The inability of Japanese courts to uphold Nevada court rulings (based upon Meiji-Era laws which are based upon ancient ways of establishing parentage (since modern methods, such as DNA testing, didn’t exist) would make registering “Cindy” an illegal act (in Nevada), and the breaking of a promise made to “Cindy”.

So they will raise their children as Japanese with American citizenship.

As the show pointed out, this means:

1) The children (now three years old) must get visas, and keep renewing them.
2) The children must register as foreigners, and carry Gaijin Cards 24-7, or face criminal charges, once they reach Junior-High age.
3) The children have no automatic right to compulsory education (gimu kyouiku), guaranteed only to citizens in Japan.
4) The children cannot vote.
5) The children cannot participate in the political process.
6) The children have no automatic inheritance rights (short of the parents writing a Will).

Now my opinion. I’m very proud of Mukai and Takada standing up for themselves like this. The ruling, as I mentioned above, is ludicrous. And it may inspire lawmakers to update the citizenship laws to reflect modern realities.

Moreover, this case (attracting great attention due to the couple’s celebrity status) might even point out out what a raw deal foreigners have in Japan (particularly regarding education and inheritance), even if they ARE born here.

Debito in Sapporo

SOME REFERENTIAL LINKS:
Japan Times Saturday, March 24, 2007 Top court: No registry for pair born to surrogate
http://search.japantimes.co.jp/cgi-bin/nn20070324a3.html

Japan Times Wednesday, Apr. 4, 2007 READERS IN COUNCIL Shoddy ruling on baby twins
http://search.japantimes.co.jp/cgi-bin/rc20070404a4.html

Tokyo High Court’s reasoning in 2005 when rejecting Mukai and Takada’s case (basing it more upon public morals than maternity issues):
Japan Times: Tuesday, May 24, 2005 “High court rejects registering babies by surrogate mother”

Presiding Judge Sota Tanaka of the Osaka High Court: “Surrogate birth poses a serious humanitarian concern as it treats a person as a reproductive tool and causes danger to a third person through pregnancy and giving birth. The contract for such surrogate births violates public order and morals and is invalid, as it could cause a serious feud over the child.”
http://search.japantimes.co.jp/print/nn20050524a5.html

ENDS

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