Mukai ruling stirs debate / Highlights gaps between law, reality over surrogate births Atsuko Kobayashi / Yomiuri Shimbun Staff Writer
The Supreme Court's ruling Friday on twin sons born through surrogate birth did not address whether the medical practice should be allowed, but did strongly call for legislative action for reproductive assistance medicine.
The ruling said Aki Mukai's request to register the boys as her children by birth could not be accepted under the current law. The 3-year-old boys were born through an American surrogate mother using Mukai's eggs and her husband's sperm.
Yuki Sumi, head of the Japan Office of the Nevada Center for Reproductive Medicine in Tokyo, said, "Almost all babies born through surrogate birth overseas have been registered in Japan as the commissioning couples' children by birth."
The organization has brokered surrogate pregnancies in the United States for more than 15 years, helping 55 couples have 75 children.
Japanese law says that the woman who actually gives birth to a child is the mother, meaning registration of a child by a biological mother is not allowed if the baby was born through surrogate birth.
But in Nevada and some other U.S. states where surrogate births are allowed, couples that have used surrogate parents can obtain birth certificates for their babies stating they are their children by birth.
As the U.S. certificates do not mention the children as being born by surrogate birth, the couples can register their babies as children by birth in Japan, and such family registrations are often accepted unchecked.
Japan has no law to prohibit surrogate mothers. Yahiro Netsu, a doctor in Shimosuwamachi, Nagano Prefecture, has made public five cases in which he has overseen surrogate births using a women's kin, such as sister or mother, as a surrogate birth mother.
Netsu said the babies were once registered as children of the women who delivered them and then adopted as children of the couples.
The Japan Society of Obstetrics and Gynecology announced in April 2003 its guideline to ban surrogate births, and notified member doctors of the decision that the medical society does not allow any form of surrogate birth, regardless of whether it is done without charge.
The medical society cited four reasons:
-- Child welfare may be affected.
-- Surrogate mothers may be exposed to physical risk and psychological burden.
-- Family relationships may be come too complicated.
-- Surrogate births are not socially accepted.
A report compiled the same month by the Health, Labor and Welfare Ministry's panel on reproductive assistance medicine also proposed that surrogate births should be prohibited and punishable.
The report said, "The practice of surrogate birth treats humans like tools for reproduction and imposes serious danger on third persons."
Moves to ban surrogate births are based, in addition to ethical problems, on the view that pregnancy and delivery carry too many risks.
Even though medical technology has progressed, about six women out of every 100,000 births in the country die during delivery. There was a report of an overseas case in which a surrogate mother died after having a miscarriage.
Netsu's work with surrogate births, especially one case in which a woman in her 50s became a surrogate mother for her daughter, have been questioned for the dangers involved.
In the United States, it is common to pay about 3 million yen to a surrogate mother and another 3 million yen fee to a broker. If travel and other expenses are included, a commercial surrogate birth can cost tens of millions of yen before the baby is even born.
There is a deep-rooted perception that wealthy people exploit economically disadvantaged women as tools for having babies.
The Supreme Court ruling pointed out that "surrogate birth is something that had previously been inconceivable under the Civil Code, and we strongly hope that legislative steps will be taken immediately to cope with the situation."
Today, an estimated 300,000 people in Japan are receiving some form of fertility treatment, and public perception of reproductive assistance medicine is changing.
Surrogate births are divided into two kinds. One is the host mother method, in which a fertilized egg produced from the couple's sperm and egg is implanted in another woman, who later gives birth to the child. The other method uses the husband's sperm and an egg cell of a woman other than the wife, with a third person used as the surrogate mother.
The Osaka High Court in May 2005 turned down a family's registration of a child born through the second method as theirs, saying the practice offended public order and morals.
The Supreme Court upheld the decision without deciding on whether the medical practice should be allowed.
Mukai's case used the first method. Because the boys are genetically no different than if they were born through a natural pregnancy, there is less public resistance to this method.
In a survey by the health ministry in 2003 of about 4,000 people, 44 percent said they could accept the first method, under certain conditions. Twenty-four percent said it should not be allowed.
After the Tokyo High Court's decision in September that allowed Mukai and her husband to register the children as their own by birth, the government decided in November to start preparations to regulate reproductive assistance medicine.
The government has asked the Science Council of Japan to discuss if surrogate births should be allowed, how to compile basic rules if they are implemented and how to define family relationships under the practice.
The council is expected to submit a report next year. Moves to create a new framework of surrogate birth have finally started.