On 4 September 2006, the Supreme Court of Japan reversed the decision of the Takamatsu High Court[PDF160KB], in which the latter recognized postmortem acknowledgment of paternal affiliation of a child, who was born by in-vitro fertilization, using the father's sperms that had been kept under refrigeration. The sperms were treated as such because the husband was to receive a bone-marrow transplant during treatment of infertility; however, the husband passed away before the resumption of the treatment.
In the second instance, the Takamatsu High Court had acknowledged paternal affiliation by repealing the judgment of the district court, which had dismissed the mother's claim for acknowledgment of paternal affiliation. According to the High Court's judgment[PDF154KB], it is sufficient to acknowledge paternal affiliation in case of in-vitro fertilization if the following requirements are met: "in addition to the existence of natural filiation by blood between the child and the factual father, that the actual father has expressed his consent concerning the gestation concerned, unless there are special circumstances that would make the acknowledgment wrongful". Claims for acknowledgment of paternal affiliation allow for the establishment of legal filiation by making objective findings about natural filiation by blood through legal proceedings, when the father does not acknowledge the child voluntarily. On the other hand, the High Court had continued, the father's consent to gestation is required when preserved sperms are used, because the father may have to bear unexpectedly heavy responsibilities regardless of his will. The High Court found that the requirement of consent had been met in the present case.
On the contrary, the Supreme Court found that the present Civil Code does not presuppose filiation between the father and a child fertilized after his death. Legal issues arising from filiation, such as custody, child support and rearing and inheritance, cannot emerge under the existing legislation. In the absence of legislative provisions which recognize filiation in this kind of case, the Supreme Court considered that the establishment of legal filiation cannot be acknowledged.
Furthermore, the supplementary opinions of individual judges stated that the judiciary cannot make its own decisions concerning these children, who are born in the vacuum of legislation by medical progress, because it is necessary to harmonize various values and legal systems concerning legal filiation. Even if the best interests of these children should be a primary consideration, the establishment of filiation is not necessarily in the interests of the children concerned in these cases. Rather, it will lead to unregulated birth of children whose father was absent at the time of gestation if filiation is acknowledged only on the basis of filiation by blood and the parents' will. In view of these concerns, the supplementary opinions called for early legislative steps.
The Working Group on Medical Technology for Reproductive Treatment, which has worked under the Health Science Council of the Ministry of Health, Labour and Welfare, submitted Report on the Consolidation of Medical Systems for Reproductive Treatment by Donor Sperms, Eggs and Embryos in 2003, proposing necessary measures for proper application of reproductive medical technology in the midst of rapid progress. According to the report, preserved sperms should be done away with when the donor's death is confirmed, because it is impossible for the donor to withdraw his consent to the use of sperms, leaving no ways to confirm the donor's will. It may also be harmful to the welfare of the child, since his or her genealogical parent does not exist at the time of birth.
The Working Group on Filiation Law in Relation to Medical Technology for Reproductive Treatment, set up under the Legislative Council of the Ministry of Justice, also prepared Preliminary Proposals on the Outline of Special Provisions in the Civil Code Concerning Filiation of the Child Born through Medical Technology for Reproductive Treatment by Donor Sperms, Eggs and Embryos in 2003. The proposals did not take up the issue of using the husband's sperms under refrigeration after his death, indicating that it is inappropriate to make provisions on filiation when there is no clear idea of the regulations in the field of medicine law. No drafts have been prepared in either of the fields.
In February 2006, the Tokyo High Court dismissed a claim for paternal acknowledgment in a similar case, stating that in-vitro fertilization by using sperms under refrigeration requires the donor's consent in each case.
· Judgment of the Supreme Court, 4 September 2006 [PDF160KB] [Japanese]
· Judgment of the Takamatsu High Court, 16 July 2004 [PDF154KB] [Japanese]
· Working Group on Medical Technology for Reproductive Treatment of the Health Science Council, Report on the Consolidation of Medical Systems for Reproductive Treatment by Donor Sperms, Eggs and Embryos [Japanese]
· Working Group on Filiation Law in Relation to Medical Technology for Reproductive Treatment of the Legislative Council, Preliminary Proposals on the Outline of Special Provisions in the Civil Code Concerning Filiation of the Child Born through Medical Technology for Reproductive Treatment by Donor Sperms, Eggs and Embryos [Japanese]