On 23 March 2007, the Supreme Court of Japan ruled out the validity of a notification of birth, through which a couple tried to register a child born through surrogacy as their own[PDF42KB](Japanese). The couple had made contract with a surrogate mother in Nevada, U.S.A., and attempted to register the child as their own in Tokyo, but the notification of birth was not admitted. The parties to the contract had agreed that the couple would be the child's biological parents, and the state court in Nevada had confirmed it on the couple's application for the establishment of filiation.
While the first instant court in Japan dismissed the couple's application for an order to have the notification of birth admitted, the Tokyo High Court decided in favor of the couple and ordered Shinagawa City Office to admit the notification. The second instance court reasoned that the child would have no legal parents if the judgment of the Nevada state court is not to be accepted; that the child has blood relations with the couple, having been born using their oval and sperms; and that there are no factors which might infringe on the surrogate mother's dignity.
The Supreme Court overturned the judgment of the Tokyo High Court, stating that legal decisions in other countries, which acknowledge filiation that is not recognized in the Japanese Civil Code, are against public order. According to the Supreme Court, filiation is a matter of public interest, concerning not only private persons; "it concerns the fundamental principles or philosophies that are the main pillars of legal order of civil status". Therefore "the criteria on the establishment of filiation must be precise and clear, and the existence of filiation should be uniformly determined in accordance with the said criteria". On the other hand, the Supreme Court also pointed out the fact that children are actually born through surrogate birth and other assisted reproductive technologies, while the Civil Code has not anticipated such a situation, and urged that "prompt legislative responses are strongly expected". In his individual opinion, a judge also indicated the need to make efforts to have social consensus for legal reform on the basis of medical and legal considerations.
With regard to surrogate birth, the Working Group on Assisted Reproductive Technologies within the Health Science Council of the Ministry of Health, Labour and Welfare had argued for its prohibition in 2003, because surrogate birth treats a human being as a reproductive tool and because it is not desirable in terms of children's welfare.
· Judgment of the Supreme Court of Japan, 23 March 2007 [Japanese]
· "Report on the Consolidation of Medical Systems for Reproductive Treatment by Donor Sperms, Eggs and Embryos" [PDF42KB], Ministry of Health, Labour and Welfare, 2003 [Japanese]