by Robert Moorehead

According to the Mainichi, on September 13, the Osaka Family Court ruled that a child conceived through sperm donation must be registered as fatherless. The Court rejected the petition of a 31-year-old transgender man and his wife, who had sought to add their son to their family registry. The Tokyo Shinjuku Ward Office had refused to record the man as the child’s father, noting that he was biologically incapable of fathering the child. Instead, the Ward Office left the father section of the family register blank. An immaculate conception!

The man had legally changed his gender in 2008, and married his partner shortly thereafter. The Court ruled that Japanese law bases parenthood on a biological connection between parents and child. Since government officials are unable to watch people conceive their children and they do not require DNA tests to add children to family registers, the standard practice has been to record both parties in a married couple as the child’s parents—even if the child was conceived through sperm or egg donation.

This case comes down to whether the government knows whether you’re capable of conceiving a child. If the government does not know that reproductive technologies have been used, then the parents are in the clear to record the child as theirs. However, if you’re a transgender parent and had legally re-registered your gender, or a woman whose fertility is in question, then your claim to parenthood may be denied.

This privileging of biological ties is inconsistently applied, as in 2003 authorities refused to register actress Aki Mukai as the mother of twins who were born through an American surrogate, and instead registered the surrogate as the children’s legal mother. Mukai’s ova and the sperm of her husband, wrestler Nobuhiko Takada, were used in the surrogacy. However, the Japanese Supreme Court ruled that Japanese law only recognizes the woman who gives birth to the child as the legal mother. Mukai and Takada were required to adopt their children, who were registered as American citizens and foreign residents of Japan.

In another example, a woman’s spouse will be automatically recorded as the father if the child is conceived during the marriage, regardless of who the biological father is. If the woman conceives the child with someone other than her spouse while she and her spouse are separated, and she subsequently divorces and re-marries, the ex-husband will be listed as the child’s biological father.

Why engage in such legal and mental gymnastics? Defenders of the current law say that it is necessary to support the sanctity of marriage. Such marriage laws also legally discriminated against children born to unmarried parents by limiting them to half the inheritance their “legitimate” siblings would receive. On September 4, the Japanese Supreme Court unanimously overturned a 1995 decision that upheld the law.

Following the logic of the Osaka Family Court’s decision, if a child is born through anonymous sperm and egg donations to infertile parents, and the government knows the parents are infertile, that child could legally be recorded as having no parents. An even more immaculate conception!

Such a child would also be stateless. For children to receive Japanese citizenship at birth, they must have at least one parent who is a citizen. Thus, if the mother of the child in the Osaka case is not a Japanese citizen, then her child will also not be a citizen, as the child’s legally non-existent father would not be able pass on citizenship to him.

A further wrinkle is that an overseas birth must be registered with Japanese authorities within 90 days for the child to receive citizenship. Given the dearth of reproductive services in Japan, many women seek services outside the country. If, upon returning to Japan, the couple’s parenthood is in question, the couple must choose whether to register the surrogate as the mother, or challenge the decision and risk missing the window in which to register the child for Japanese citizenship.

Beyond the common situation of the law not keeping up with rapid changes in reproductive technology, these cases show how the law gets twisted and turned as judges and other officials see fit, to support a status quo that does not serve the interests of children or parents.