New Law in Japan to Stipulate Parental Ties in Fertility Treatments with Third-party Donors

By Naho Osawa and Daiki Misawa / Yomiuri Shimbun Staff Writers

16:02 JST, November 29, 2020

Special provisions to the Civil Code that stipulate parental relationships for children born from fertility treatments using donated sperm or eggs are expected to be passed in the current extraordinary Diet session.

While the provisions will likely help avoid lawsuits over parental relationships, legal frameworks addressing factors such as children’s right to know their parentage and surrogate pregnancies were left out.

Meiji-era Civil Code

The legislation stipulates that a man who consents to a treatment using donated sperm is the father and a woman who gives birth to a child from a donated egg is the mother.

“Parental relationships currently cannot be established without legal proceedings,” said Liberal Democratic Party House of Councilors member Toshiharu Furukawa during an upper house judicial affairs committee meeting on Nov. 19. “We need to resolve this as soon as possible.”

When the Civil Code was created in the Meiji era (1868-1912), people did not think about fertility treatments involving third parties.

Although such treatments have become common due to technological progress, there have been lawsuits in which a husband whose wife had a child using donated sperm rejected being the father.

Maintaining anonymity

Under the proposed legislation, children would not be able to ask the donor to recognize them. Neither would the donor be able to be recognized as the child’s parent. It is hoped this will help secure more sperm donors, which has become difficult in recent years.

Keio University Hospital, one of the leading fertility centers in Japan, stopped accepting new patients for treatments using donated sperm in 2018. Some children born from these treatments had started looking for their donors, and the hospital became worried a child would someday ask to legally confirm a parental relationship.

A 40-year-old woman from Tokyo who gave birth to two daughters, now 8 and 5 years old, with donated sperm from the hospital said: “If the law can stop the decrease in donors, more people will be able to get treatment in Japan. That’s a big step.”

Treatment with donated sperm has a long history. In Japan, these treatments began in 1948, not long after World War II. More than 10,000 children are believed to have been born using anonymously donated sperm to couples in which the man has azoospermia, a condition where the semen contains no sperm.

Egg donation is used for women who cannot become pregnant due to ovarian dysfunction. The first such birth in Japan is believed to have been at Suwa Maternity Clinic in Nagano Prefecture in 1998. In that case, a younger sister donated eggs to her older sister.

With people getting married later in life, more women are experiencing infertility due to aging. Some women obtain donated eggs overseas, though it is unclear how common this is.

Lagging behind

Japan lags behind other countries in creating a legal framework for fertility treatment.

France has a bioethics law that recognizes sperm and egg donation and that regulates parental relationships. Britain, Germany and other countries also have laws on fertility treatment.

In Japan, there was momentum for such legislation about 20 years ago. In addition to clarifying parental relationships, regulations on treatments were also considered, but there was strong opposition to the involvement of people besides the husband and wife because of a belief this would destroy the traditional view of the family. Debate over the matter in the Diet stagnated.

The current proposal comes from a 2016 agreement between the LDP and its ruling coalition partner Komeito that they would first pursue legislation on parental relationships, as it was easier to reach consensus on this matter. The beginning of the bill lays out overall principles for fertility treatment.

According to a source in the ruling bloc, the bill was able to be submitted to the Diet by a coalition of five ruling and opposition parties thanks largely to increased interest in this issue that provided a tailwind since the launch of the administration of Prime Minister Yoshihide Suga, which is advocating insurance coverage for fertility treatments.

The reason the Constitutional Democratic Party of Japan and other opposition parties decided to take part in the bill’s joint submission, a source said, is because “it’s not a good idea to be seen as opposed to fertility treatments.”

Right to know put off

Even if the bill passes, many issues will still need to be resolved. The legislation states that bylaws will be considered around two years after enactment through a caucus of Diet members from multiple parties.

The right to know one’s parentage is one of the issues to be discussed. Some children born through fertility treatments have asked to know the identity of the donors due to concerns such as about genetic diseases and unknowingly marrying a relative.

Sachiko Ishizuka, a 41-year-old office worker from Tokyo, was 23 when her mother told her she was conceived with donated sperm.

“I didn’t like feeling that I was born from this ‘thing’ called sperm and my mother,” she said during a press conference in Tokyo on Nov. 24.

“Knowing one’s parentage is to feel that one was born from a person,” she said. “If one can’t obtain information when one wants to know the identity of the donor, these treatments should not be provided.”