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Donor conception in Japan; a case of buyer beware or a need for regulation?

14 February 2022
By Dr Damian Adams, Dr Hideaki Kato and Dr Yukari Semba
Dr Adams is an adjunct researcher at Flinders University, College of Nursing and Health Sciences. Dr Kato is an assistant professor at the Infection Prevention and Control Department, Yokohama City University Hospital. Dr Semba is a project lecturer at the Institute for Gender Studies, Ochanomizu University.
Appeared in BioNews 1132

Recently it was reported online that a Japanese woman had given up her donor-conceived child for adoption after learning that her chosen donor had lied about his education and ethnicity (see BioNews 1128). Subsequently, the woman filed a lawsuit against the donor for approximately $2.86 million for emotional distress.

However, it is not clear from the article whether the woman chose to find a donor privately due to the low availability of official services. There are only 12 facilities registered with the Japan Society of Obstetrics and Gynecology that offer donor insemination. However, an article dated 22 December, 2021, published in the Mainichi Shimbun newspaper, suggested that perhaps only four facilities (not including the three facilities that did not respond to their enquiries), were taking new reservations. Sourcing donors online has become an increasingly common phenomenon worldwide as couples and individuals seek to have a child, including in this instance. The woman used social media to find her donor and subsequently had sex with him to become pregnant.  

Fertility treatment in Japan is a largely unregulated industry, and the first legislation regarding donor conception in Japan was only issued by parliament on 4 December, 2020. This new legislation was implemented after this woman became pregnant in June 2019, recognised partners in heterosexual couples only as the legal parents of any donor-conceived child and further strengthened Article 772 of the Civil Code, which states; 'A child conceived by a wife during marriage shall be presumed to be a child of her husband.'

There has been an increasing acknowledgement of the welfare needs of donor-conceived people, particularly to know the identity of their biological parent, the donor. In some jurisdictions such as Argentina, Australia, Austria, Finland, New Zealand, Norway, Sweden and the United Kingdom, donor-conceived people have the right to know the donor's identity. However, this right is not recognised under Japanese legislation. The donor's identity is also at the heart of the lawsuit. The donor had claimed that he was Japanese and a graduate of Kyoto University. However, the woman later discovered that he was Chinese and graduated from a different university. This lie about his identity aggrieved the woman enough to sue and give up the child.

The relinquishment of the child based on not receiving what the mother asked for parallels consumerism. The child's rejection because the child did not represent what was 'ordered' highlights that the child was treated as a commodity. Caveat emptor, or let the buyer beware, may be sufficient for goods or services, but when humans – and particularly children – are reduced to goods, something is inherently wrong in the system.

In Japan, adoptees are legally entitled to know that they are adopted by viewing the family register called a Koseki, which is somewhat different to a birth certificate. The Koseki is often viewed at important life events such as entering school, being employed, getting married or registering the birth of a child. However, depending on how the child was registered in this case, the woman's husband is most likely the man listed, the child may grow up believing that this Japanese man is their biological father rather than the Chinese donor. Subsequently, the child may never know their true origins.

This intrinsic need for accurate genealogy by some donor-conceived people has been shown to impact their welfare. Not only from a genealogical perspective but also for their identity construction, to prevent consanguineous relationships and assist with their own physical and mental health through knowledge of their familial medical history.

There are certainly racist elements inherent in this situation. However, in this instance, debates about racism may be counterproductive. Rather we would prefer to focus on the welfare of the child. Although legislation was recently introduced in Japan, it did not go far enough and failed to acknowledge the welfare issues associated with being donor-conceived.

In addition, improved legislation and regulation needs to be introduced in Japan immediately that acknowledges the child's right to know their origins and provide them with access to their familial medical history. This right has been successfully implemented elsewhere, such as in Australia and the UK, without adversely impacting donor numbers. Furthermore, anonymity can no longer be guaranteed due to direct-to-consumer-DNA testing, even in Japan, which has not yet fully embraced this service.

This case also highlights that the fertility treatment industry in Japan is unable to cater for all those seeking treatment. A situation that is further complicated by the fact that insurance-based medical treatment is well-established, but infertility treatment is self-funded. Without adequate services supported by insurance, people may turn to private arrangements which present dangerous situations for the woman wanting to conceive – subsequently foregoing proper donor screening, and thus creating a significant health risk for themselves and the child.

While the consumerism element of relinquishing a child for adoption cannot be legislated against, at least if the industry is properly regulated and the infertile are appropriately supported, situations such as this will hopefully be a thing of the past.

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