In response to yet another earnest challenge to Japan’s family register (koseki) system, the Tokyo Family Court on Feb. 28 refused to recognize a person as the father of two children despite the fact that this person provided their own sperm to produce the children in question. The donor is not married to the woman who gave birth to the children, and as we’ve mentioned in this space previously, Japanese law prioritizes married couples, which means the husband of the mother is automatically assumed to be the father of the child. And while this protocol would seem to be obvious and unassailable, there are exceptions that test this rule, as when the couple is separated for whatever reason and the mother is in a relationship with another man who impregnates her. Relationships considered unconventional but which produce a child can confuse matters when it comes to registering the child’s birth. These include same sex relationships or mothers who remain single. In other words, if the mother is not in a heterosexual marriage recognized by the state, the family register system is thrown for a loop. Granted, these exceptions are rare in Japan, but they do happen and there are indications that they will increase in the future.
The Feb. 28 decision is tricky, but not because the father is not married to the mother. Though in such circumstances the resulting child is officially designated as being illegitimate in the koseki, the father can still claim paternity as long as they acknowledge the child administratively within the proper timeframe. The problem here is that the father is not a man. The person who is suing to be recognized as the father of the children in question underwent gender reassignment surgery between the time she had her sperm frozen and the time her partner was inseminated with that sperm and then gave birth to the resulting babies, one in 2018 and the other in 2020. There is no doubt that the woman, who is unnamed in the Asahi Shimbun report on the matter and is in her 40s, is the biological father of the children, but that means nothing to the arbiters of the family register because there is nothing in the law that takes such circumstances into account. So while there is a blood relationship between the woman and the children, there is no legal relationship.
It should be noted that the woman officially changed her gender designation on her koseki in 2018 in accordance with a special law that went into effect in 2004. Since then, more than 10,000 Japanese people have legally changed their gender designation, and while this has been seen as progress for the rights of transgender individuals, when children enter the picture matters get complicated. The judge in the Feb. 28 case did recognize the blood relationship between the woman and the two children, but said that the Civil Code does not recognize a parent-child relationship involving a woman who is not the birth mother. Moreover, the court said that the law’s interpretation of paternity is premised on the father being a man, so the plaintiff can be neither the children’s mother nor their father, at which point the law runs out of parental designations.
Real life, as it were, doesn’t figure into it. Following the verdict, the woman said that she is actively involved in raising these two children and is definitely biologically related to them. She said it made her “extremely sad” that the state didn’t recognize any of that. In a similar ruling in December, the Supreme Court rejected a plaintiff’s appeal to have their gender legally changed to that of a woman following gender reassignment surgery because the person was the legal father of a daughter who was still a minor, and that changing the person’s gender would “confuse” the daughter, who was 10 at the time, despite the fact that the plaintiff had already undergone gender reassignment surgery. The plaintiff, however, is divorced from the daughter’s mother, thus bringing up the question of custody, which in Japan usually goes to one or the other parent but not both (granted, media reports have not clarified who has custody of the daughter), so if the ruling hinges on a legal nicety, the judges seem to have taken a novel view of it.
In its report on the Feb. 28 ruling, the Asahi mentioned that, since Japan does not recognize same sex marriage, some local governments have addressed the gender designation issue by recognizing, at least at a local level, that children of LGBTQ couples are really their children, which could have ramifications in terms of taxes and benefits. One support group told the newspaper that such couples are at a disadvantage and may need to write notarized wills to protect parent-child relationships unacknowledged by the state, so the family court’s decision can have lingering effects that the judges failed to envision, though they may say that such possibilities are not in their purview.