Surrogacy and Japan: A Case for Regulation

Abstract

Within the last few decades, assistive reproductive technology (ART) has had high levels of usage, particularly artificial insemination (AI) and in vitro fertilization (IVF).  The advent of IVF opened a host of additional possibilities, including the recruitment of women who have no genetic link to the child to serve as surrogates.  Over the past several decades, the average age of a woman who has her first child in Japan has climbed to 30.7.[1] Couples have increasingly found themselves unable to bear children and have turned to IVF.  Yet Japan has no statutory provisions regulating surrogacy, and the Japanese Society of Obstetrics and Gynecology flatly bans the practice.  As a result, many infertile couples have gone abroad to arrange surrogacy.  But in 2007 the Supreme Court ruled that the legal mother in a surrogacy birth is the surrogate, even if a foreign court had ruled otherwise.  This case is translated in full in this Article, along with an exploration of the state of ART and surrogacy in Japan and potential routes for regulation.  This analysis is done mainly through the lens of comparison with the United States and the recent Child-Parent Securities Act (CPSA) in New York. [1].       Number of Newborns in Japan Fell to Record Low While Population Dropped Faster Than Ever in 2018, The Japan Times (Jun. 7, 2019), https://www.japantimes.co.jp/news/2019/06/07/national/number-newborns-japan-fell-low-918397-2018-government-survey [https://perma.cc/M4WJ-TBJW].