Since 1981, Japan’s population have seen a steady decline in the number of children in the country. Infertility has been a major problem in Japan and one possible solution could be surrogacy. Surrogacy is defined as is an arrangement by which a woman gives birth to a baby on behalf of a woman who is physically unable to have babies herself. One solution to resolve the issue is a problem of its own since surrogacy is not widely accepted in Japan. Surrogacy in Japan is not illegal by law, but remains a controversial and unethical practice in the Japanese culture.
In 2001, Japan's first successful surrogacy was announced by Yahiro Netsu, the director of Suwa Maternity Clinic. The surrogate mother was the younger sister of the intended mother and the intended's parents embryo was placed in her womb. As a result, Dr. Netsu and his clinic was heavily criticized by the Health Ministry and other medical administers.
Immediately after the announcement, there has been a follow up discussion from Japan Society of Obstetrics and Gynecology (JSOG) to prohibit the following practice in the country. In 2003, JSOG officially banned all of their members (almost all Japanese obstetricians) from assisting with surrogate pregnancy. JSOG presented several reasons to justify their actions:
- The welfare of the unborn child should be given the highest priority.
- Surrogacy can be followed by mental and physical implications.
- Surrogacy complicates family relationships.
- Surrogacy is socially unacceptable in society.
In 2003, the Health Ministry also released a statement, recommending to place a ban on surrogacy.
In January 2007, the Japan Federation of Bar Associations release their report, claiming to defend surrogacy prohibition.
Finally, on April 8, 2008 the Science Council of Japan released its report on surrogacy as requested from Ministry of Justice and the Ministry of Health requested in November, 2006. The report concluded that:
- Surrogacy should be ban under specific laws.
- Commercial surrogacy should be punished and made an offense.
- Surrogacy should permitted on trial basis.
- Regulatory agency responsible for administrating experimental surrogacy should be established
- Surrogates should be the legal mother of the child.
- The child may be adopted by the intended parents
- The child should have the right to know their origins.
- Discussions shall remain.
- A public institute and standing committee should be establish to deal with bioethics and policy planning.
- The child’s welfare should always be given high priority.
The Case of Aki Mukai
One of the most recognized cases of surrogacy involves Aki Mukai, a famous Japanese TV personality. After seven years of marriage to Nobuhiko Takada, a former professional wrestler, Mukai became pregnant with their first child. Shortly, Mukai was diagnosed with cervical cancer, resulting the removal of one of her ovaries. She decided to freeze her ovary and considered surrogacy overseas.
In August 2002, Mukai and Takada flew over to Nevada, United States to start the surrogacy process. Eventually, their surrogate, Cindy was finally pregnant and in November, she give birth to two twin boys, Banri Takada and Yuta Takada. The couple had planned to obtain the twin's Japanese citizenship through their U.S birth certificate, but their request was denied. Thus, Aki Mukai began to publicize her case, in attempt to have her children recognized as part of the her family registration by the government. Eventually she filed a court case against Tokyo’s Shinagawa Ward and won her case in the Tokyo High Court in September 2004.
As a result, the influence of Aki Mukai's surrogacy case spread widely. After the case was closed, it still continued to remain an important topic. The outlet had reached and started up debates regarding surrogacy and caused many discussion in the political and medical field.
In the Japanese culture, family is extremely importance since a family is consider the basic unit of society. In their culture, a family place great emphasizes on the children. The bond between the mother and the child is essential in the culture and should be developed during the early stages. Without carrying the child in her for nine months, some would argue that the maternal bond is weaker than it could have been if carried by the intended mother.
Another issue that many fail to address involves the surrogate mother. Most surrogacy currently are carried by married women who had already have conceived a child previously. If a unmarried woman carries a child for another couple, the culture stigmatizes the woman. The people believe women should be married before having children.
The biggest concern of surrogacy in Japan involves the legal definition of family, the family registration. According the Japanese Civil Code, in order to establish a legal paternal relationship, the child must not be born out of wedlock. On the contrary, to officially obtain a mother-child relationship, the delivery of the child must be from the mother's womb.The law was establish according to the idea of natural reproduction.
Citizenship of the child conceived is another factor to consider. If the child was born in Japan, there would not be a problem at all. To acquire citizenship by birth in Japan, they are two way is doing so, jus sanguinis and jus soli. Jus sanguinis occurs when citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Furthermore, jus soli occurs when citizenship is determined by the location of birth. If the child was born in the state's territory, then he/she will obtain the country's citizenship. If a child is birth overseas to through a surrogacy, the child would obtain the citizenship of that country (depending on the country's laws) because the legal mother would be the surrogate mother.
For now, the best solutions to solve these issue are:
- Filing an appeal or a case in court.
- The intended parents can file an adoption for the child and will would have to be approved by the court.
The main benefit of surrogacy is assist individuals and couples who have cannot have children on their own. The intended parents may have medical issues that make it difficult for own to conceive. Members of the LGBT community and individuals who do not have partners could also benefit as having biological child. In addition, surrogacy allows the intended parents to raise the child from birth and allowing them go through the pregnancy progress.  In Japan's case, the low birth rate can be helped because many women currently put off child rearing until a lot later. With increasing age, the fertility rate of the women decreases. With surrogacy, the women would not have to worry about the implications of having a child when they are older.
There are also benefits for surrogate mothers. Women who become surrogates may have a sense of accomplishment and bliss for helping another family. They can also receive financial compensation from the intended parents. Furthermore, the surrogate mother can build a wonderful and genuine connection with the intended parents.
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