Media watch: Sperm “donor” sued for lying on his application

In late 2020, the Japanese government passed a law that recognizes married couples who have children via donated sperm and eggs as being the legal parents of those children. The law would go into effect in one year’s time, meaning, presumably, it became effective last month. Prior to this revision to the civil code, parents who had children using such methods had to go through a convoluted bureaucratic process to have the resulting children registered as being theirs, but even in such cases there were always documentary clues that indicated the child’s biological provenance, a matter that concerned many prospective parents. Since the government is determined to increase the birth rate, it was important to change the law so that parents who wanted to access such treatments due to issues that prevented them from having children otherwise would be encouraged to procreate. In essence, the revision allows the man married to the woman who gives birth to declare himself the legal father of the child even if he did not provide the sperm; and allows the woman who gave birth to the child to be the legal mother even if the egg was donated by a third party. What the law does not do is allow the resulting child to seek disclosure of the identities of any of the donors, a point of contention to some interested groups. 

The law indirectly points up the relative lack of regulation covering donated sperms and eggs in Japan, as well as the general practice of in vitro fertilization and artificial insemination. While the revision helps the government maintain its control over who can declare themselves the parent of a Japanese child, which is one of the purposes of the family register (koseki), it has no effect on the process of how these parents acquire the eggs or sperm needed to carry out the desired function of producing a child. Though the government has said it intends to discuss the purchase and sale of sperm and eggs, in which the Japan Society of Obstetrics and Gynecology does not allow its members to partake, it has yet to proceed any further than a declaration of purpose. In addition, many hospitals have suspended artificial insemination treatments, which means more and more couples who wish to carry out such treatments are on their own.

Consequently, many couples who wish to access third party gametes use a variety of resources to obtain them, including the internet. A number of mainstream media outlets have run stories on the trend since the fall of 2020. Kyodo wrote in November 2020 about how a sperm bank based in Denmark had recently seen a run on their wares by “more than 150 Japanese women” after launching a consultation service in Japan in 2019. The customers had so far included not just married women whose “husbands are infertile,” but also single women and sexual minorities. The article mentioned that the number of “anonymous sperm donors” in Japan had dropped in recent years, thus opening up a door of opportunity for foreign services like the Danish company. Last month, Mainichi published a feature about men who make themselves available for sperm donations online, focusing on one 28-year-old married man who has reportedly fathered more than 50 children but who has decided to call it quits, even though his services are more in demand than ever. Mainichi interviewed the man, whose intentions seem totally altruistic: The article does not say if he receives any compensation for his donations (which he provides directly to the recipients and not through a mediating party), but felt that he could provide a valuable service, especially to women who “couldn’t be accepted at medical institutions.” His wife agreed to his donation activities, and the main reason he has stopped is that “more online donors” have emerged in the meantime.

However, an Asahi Shimbun article from September 2020 (available in English the following month) outlined the “dangers” of accessing sperm donations online. Since the transactions are exclusively between the donor and the recipient, the latter essentially has to take the former’s word for whatever information the latter requests prior to fulfilling any sort of agreement. A lawyer who often handles disputes involving artificial insemination told the newspaper that there is “always a risk of latent evil intent, such as whether the man can certify that the sperm is actually his.” The lack of regulations makes it more likely that a recipient might not get the product they expect.

As to what that actually means, the Asahi gives an example of a woman in her 30s who found a sperm donor through Twitter who claimed to be a graduate of Kyoto University, one of Japan’s most prestigious institutes of higher learning. The woman decided to use the man’s sperm because his blood type was the same as that of her husband, who “had also graduated from a national university, located in Tokyo.” She met the man in the spring of 2019 and eventually obtained his sperm. She became pregnant that summer and gave birth in February 2020. However, before she gave birth she somehow discovered that the man was not what he claimed to be. He did not, in fact, graduate from Kyoto University, but rather from a different national university “in a rural region of Japan.” Moreover, he was not Japanese. He was a Chinese national. By the time the woman found out these facts, she was already five months along, making it impossible for her to undergo an abortion. She told Asahi that had the man been “honest about his background” she would never have “accepted his sperm,” and called for some kind of law to “regulate dishonest donors.” Asahi also spoke to the donor, who claimed he had no intention to “deceive,” but since he didn’t want any resulting child to seek him out later in life, he thought it best to protect his identity by masking some details.

This particular story has not gone away. On December 27, 2021, Tokyo Shimbun reported that the woman had filed a lawsuit in Tokyo District Court that day accusing the donor of fraud, and is asking for ¥330 million in compensation. What’s most interesting about the article is those details of the case that weren’t included in the Asahi summary. First of all, Tokyo Shimbun says that the woman and her husband already have one child that is over 10 years old but wanted another one. However, her husband has an unnamed “untreatable condition.” And while the eventual donor had represented himself as being single in his Twitter profile, he was, in fact, married. This aspect is apparently important because in order to “donate” his sperm to the woman, he had sex with her “around ten times.” In her lawsuit affidavit, the woman accused the man of “wanting to have sex with me. That was his purpose and why he misrepresented his background.” Consequently, part of the reason for the large monetary request is to compensate for her “mental anguish” for having had sex with “someone whose situation was not what I thought it was.” As a result, she became pregnant and was “forced” to give birth.

There’s a lot going on here that reaches beyond the woman’s feelings of betrayal. She seems to want only a child of a certain pedigree, and while it’s not clear if that has to do with “blood” (Japanese versus Chinese) it definitely has something to do with an amorphous notion of intellectual potential tied to the donor’s perceived educational accomplishment. In any case, she can’t stand the idea that she would have to raise a child that didn’t possess these desired traits, regardless of the fact that such traits are meaningless in terms of the child’s actual development, which depends overwhelmingly on the parents’ emotional input and active involvement. Thus we come to the last part of the story that wasn’t mentioned by Asahi: According to Tokyo Shimbun the child she gave birth to is now in a public child welfare facility (jidō fukushi shisetsu), and we can only presume that means the woman and her husband (though it’s also not clear if they are still together), have decided they want nothing to do with the child. Yes, as the woman said, there ought to be a law, but not necessarily against sperm donors who lie on their applications.

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