Japan is one of many countries where surrogacy is not regulated. In other words, it is neither allowed nor forbidden.
Filiation is determined by childbirth. If married, the husband shall be recognized as the legal father of the child.
We must also bear in mind that in Japanese culture, consanguinity is very important and is what determines the nationality of the person born.
The different sections of this article have been assembled into the following table of contents.
First recorded case
The first case of surrogacy in Japan occurred in 2003. It was then that a woman conceived the son of her sister and brother-in-law, the fruit of an in vitro fertilization of an ovum and a sperm from the couple.
In 2006 the Science Council of Japan met a commission of experts in assisted reproduction to assess the drawbacks of surrogacy. The result of this commission was a report published in 2008 recommending the prohibition of this technique and that specialists should not put it into practice. It also states that the surrogate mother will be recognized as the legal mother of the child.
In contrast, the report also states that if this recommendation is not complied with, then paternity in case of surrogacy should be processed by adoption by the intended parents.
In conclusion, the report recommends the ban but at the same time proposes a solution assuming that this ban is breached. As a result, the following points are established:
- Legal requirements for the surrogate and intended parents: in principle each assisted reproduction clinic is free to establish its own criteria.
- Surrogacy Agreement: Japanese courts are likely to declare any surrogacy contract null and void because it is contrary to public policy.
- Surrogacy payments: Any payment related to a surrogacy agreement will be considered a criminal offense.
- Recognition of paternity and nationality. The surrogate will be recognized as the legal mother of the born and the intended parents will have to intitiate the adoption of the baby in order to establish paternity. The baby will have Japanese nationality if one of the legal parents is Japanese.
- Advertising: promoting surrogacy or promoting becoming surrogate will likely be considered a criminal offense
- Rights of the child born by surrogacy: the rights and interests of the child shall always be given priority in any court.
- Rights of the surrogate: since the civil code establishes that it is the mother who gives birth, the surrogate will have the right to keep the baby and refuse to give consent for adoption.
Surrogacy with Dr. Yahiro Netsu
The Japanese Science Council's recommendation that doctors should not practice gestational treatments was effective. Almost all gynecologists in Japan follow this recommendation.
However, there is one exception. Dr. Yahiro Netsu performs surrogacy treatments at his Suwa Maternity Clinic in Nagarno Precture. He's probably the only Japanese doctor who openly offers this technique.
Dr. Yahiro Netsu is governed by his internal rules in which he only performs surrogacy when intended parents can provide both their gametes. In addition, the intended mother must not be over the age of 45 and must not have a uterus.
The surrogate herself must be a member of the family (mother or sister of one of the intended parents) and there can be no financial compensation.
The newborn will be registered as the child of the surrogate and later adopted by the intended parents.
Surrogacy for homosexual couples
Given the conditions and in the case of Dr. Netsu, his internal regulations, it is completely ruled out that a homosexual couple can have access to surrogacy in Japan.
Carrying out this treatment in a foreign country by two men and then register the man born in Japan is not, at present, a viable option either.
We must bear in mind that in the case of a girl, Japanese law does not allow it to be adopted by one man alone. Besides, we can't ignore the fact that gay marriage in Japan is not legal.
Suggested for you
Given the lack of regulation in Japan, it is not considered a safe destination for initiating a surrogacy process. If you want to find out about the destinations recommended by Babygest, we encourage you to continue reading here: Which country is better for surrogacy?
You can also get information about other destinations and their current situation regarding surrogacy in the following article: International surrogacy:l laws by country.
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