Report from Japan: Surrogacy Contracts in the Supreme Court of Japan

On March 23, 2007, the Supreme Court of Japan handed down a judgment to deny the parenthood of Japanese genetic parents for twin boys given birth to by an American surrogate mother. This judgment reversed a Tokyo Appellate Court decision from 2006 that acknowledged the parenthood of the Japanese married couple who had their artificially fertilized ova implanted to the American surrogate mother.

With respect to the interpretation of the Civil Code of Japan, both the Supreme Court and the Appellate Court agreed that a mother who physically gives birth to a child is the legal mother. There is no provision in the Civil Code of Japan whether to allow or prohibit surrogate mother contracts. There is no provision, therefore, to decide the maternal identification to a baby given birth to by the surrogate mother. The two courts held the same opinion that the genetic mother was not to be acknowledged as a legal mother to the children born to the surrogate mother under the Civil Code of Japan. Though the two courts agreed on this interpretation, what divided them was the question of whether or not to honor the legal validity of a judgment by a Nevada court in the United States.

The Nevada court entered a judgment in 2003 to acknowledge the legal motherhood of the Japanese genetic mother for the twin boys given birth to by the American surrogate mother. The Tokyo Appellate Court decided to acknowledge the validity of the Nevada court judgment. On the other hand, however, the Supreme Court of Japan held that the law to determine the legal parenthood between parents and children is a fundamental principle of the legal system, and that the Nevada court decision that adopts a rule that the Civil Code of Japan does not subscribe to is against the public policy of the Civil Procedure Code of Japan and therefore invalid in Japan. Section 118 of the Civil Procedure Code provides that a judgment by a court of a foreign country shall be valid unless the judgment is against the public policy either in its procedural or substantive respect.

The detailed background of this case is as follows: A Japanese wife who had a hysterectomy due to uterine cancer underwent an artificial insemination treatment in order to obtain her genetic child. Her ova, which were artificially fertilized by her husband’s sperm, were implanted to an American married woman in Nevada where the state law acknowledges the surrogate mother arrangement as a valid contract.

The American woman gave birth to twin boys in 2003 in Nevada. The Japanese couple, with the Nevada court judgment acknowledging the legal parenthood between the genetic parents and the twin boys, applied for the family registration of the twin boys in Tokyo’s Shinagawa Ward. The Ward registration office denied accepting the application on the ground that only children who are physically given birth to by Japanese women are to be registered as Japanese children.

In recent years in Japan, an increasing number of married couples who suffer from infertility choose to have their genetic children by surrogate mother arrangements abroad. Because the Japan Society of Obstetrics and Gynecology prohibits its members from assisting such reproduction, many go to the United States. Reportedly, the number of Japanese children born in surrogate mother arrangements exceeds one hundred. Parents do not ordinarily disclose the fact of the surrogate mother arrangements when they apply for the family registration. This case in the Shinagawa Ward, however, involves a married couple who are both TV celebrities in Japan, the wife being a famous TV personality and the husband being a former professional wrestler. They made their efforts of the artificial insemination public from the outset.

From a comparative perspective what might strike many as most interesting is the complete deference to the legislative branch shown by the Supreme Court of Japan. Contrary to the common law tradition of judicial law-making through the fact-specific dispute solution process with the view to achieve justice, Japanese courts tend to stick to the role of law-interpreter and abstain from law-making. In the field of the reproduction medicine, the advancement of the artificial insemination technology is so rapid and astounding that many lacunae in law are left unfilled by the legislature. The Supreme Court of Japan in this case seems to escape from a new challenge in law by only applying the old legal principle. The hardship fell on the children at the sacrifice of their welfare. The twin boys in this case are not recognized as children of the American woman under the state law of Nevada. They are not recognized as children of their genetic mother under the Japanese law, either.

The Supreme Court’s opinion does urge the legislature to enact rules on the validity of surrogate mother contracts. There is, however, no meaningful guidance from the Court to the legislature as to the form and contours of such legislation. This seems to be an escape from the expected role of the judiciary to search out requirements for new arrangements to be legally valid.

One of the advantages of the judicial rule-making, as opposed to the legislative law-making, is the gradual or step-by-step process of considering concrete factors in actual fact settings. With respect to surrogate mother arrangements, courts can scrutinize the validity of a given surrogate mother contract through examining detailed facts in a pending case. A court can examine whether or not adverse elements exist in a given surrogate mother contract; such as a coercive pressure on the surrogate mother to carry the pregnancy to child birth despite medical complications; a nature of the contract sounding human traffic; a large amount of compensation exceeding the medical costs and living expenses during the pregnancy; a leeway for genetic parents to reject a baby with unexpected disabilities and so forth. Through this type of judicial scrutiny, courts can provide valuable guidelines for the legislature to pass legislation on surrogate mother arrangements.

The Nevada court judgment touches on many pertinent issues of surrogate mother arrangements. The Supreme Court of Japan should have benefited from a consideration of the Nevada court judgment, instead of bluntly rejecting the Nevada judgment as against the public policy of the Civil Procedure Code of Japan. In this way, the Supreme Court of Japan seems to be escaping from a new legal challenge in the field of reproductive medicine.

Even in a country of the statutory law system, as opposed to the common law system, it is acceptable and desirable for the judiciary to participate in the step-by-step process of rule-making within actual fact settings. This type of the judicial participation in the rule-making will greatly contribute to a sound and secure legislation by the legislature in the field of reproductive medicine.