The Vacuum Where a Law Should Be

Begin with the two per cent, because everything else in this subject is downstream of it.

Roughly two per cent of children born in Japan are born to unmarried parents. Across much of Europe the figure runs between forty and sixty per cent, and in several countries a majority of first children arrive before any marriage does.

That gap is not a difference of degree. It is a different arrangement. Japan has fused childbearing to marriage more completely than almost any comparable country, to the point where the two are treated as a single decision rather than two related ones.

Hold that next to the question this essay was asked. A woman in Japan who wants a child and does not want, or does not have, a husband is not running into a rule that says no. She is arriving at a system that was never built with her in it — medical guidelines, legal parentage, social expectation and administrative forms all assuming a married couple, and none of them updated because almost nobody in Japan has been visibly asking them to be.

The restriction is not prohibition. It is absence.

The most common misunderstanding about Japanese surrogacy is that it is illegal. It is not, and the truth is stranger.

There is no comprehensive Japanese statute on surrogacy. What exists instead is three things standing in for one.

The first is professional self-regulation. Japan’s principal body of obstetricians and gynaecologists has opposed surrogacy in its guidelines since the early two-thousands, and those guidelines shape what member clinics will do. This is a professional position with real practical force and no statutory authority.

The second is a Supreme Court judgment from 2007, arising from a case in which a Japanese couple had children through a surrogate abroad. The court held that under Japanese law the woman who gives birth is the legal mother, and declined to register the genetic mother as such. That ruling still governs.

And the court did something worth noticing: it said plainly that this was a matter requiring legislation, and asked the legislature to act.

The third is the law that eventually came, in 2020, and what it chose not to do.

The legislation that took effect in 2021 addressed parentage in assisted reproduction, and it settled two useful things.

A woman who gives birth to a child is that child’s mother, including where the egg came from another woman. And a husband who consented to his wife conceiving with donor sperm cannot afterwards deny that the child is his. Both provisions resolve real disputes that had previously gone to court.

What the law explicitly did not settle is the entire substance of the subject. Surrogacy was left aside. The question of donor anonymity, and of whether a person conceived from donated material has any right to know where they came from, was left aside. Both were designated for further consideration on a stated timetable that has since slipped.

So Japan’s framework now specifies who the parents are and remains silent on whether the practices producing them should occur, under what conditions, with what protections, and what the resulting person is entitled to know.

A statute that assigns parentage without regulating the conduct that creates it is a statute that has decided who is responsible for the outcome without deciding anything about the process. It is the legal equivalent of labelling the box and declining to inspect the contents.

The donor side of this has a much longer Japanese history than most people realise, and it is the part with the clearest moral answer and the longest neglect.

Donor insemination has been practised in Japan since 1948, at a major university hospital, which makes Japan an early adopter rather than a laggard. Estimates of how many people have been born this way run from around ten thousand upward; nobody knows the number, which is itself the finding.

For most of that period the arrangement was total anonymity, and — critically — the overwhelming convention was that parents did not tell the child. The practice was organised around concealment, in a country where a husband’s infertility was a serious matter of face.

The consequence has arrived, as it always does. Donor-conceived Japanese adults have found out, frequently by accident and often in their thirties or later, sometimes through a medical test that produced a blood type or a genetic result that could not be explained. Several have organised publicly. Their claim is the simplest in this entire subject: a person should be able to know where they came from.

And here is the detail that shows the whole system’s shape. When the security of donor anonymity came into question in the late twenty-tens, the university that had run the programme longest curtailed it, because donors stopped coming forward. The supply depended on the guarantee of never being known.

That is worth sitting with rather than rushing past. An arrangement that collapses the moment it might become transparent was never balancing competing interests. It was resolving them in one direction and not telling the party who lost.

Follow the guidelines and the exclusions are easy to enumerate, and they explain where the demand goes.

Regulated fertility treatment in Japan is oriented toward married heterosexual couples. Professional guidelines have restricted donor treatment accordingly, which means single women and female couples are, in practice, outside the regulated system rather than inside it with conditions.

Japan does not recognise same-sex marriage nationally. Many municipalities operate partnership registration schemes with limited effect, and a series of district court decisions since 2021 have found the absence of recognition unconstitutional or approaching it, which makes this a genuinely live area rather than a settled one.

So the populations most likely to need donor conception in order to have a child at all are the populations the regulated route does not serve.

Demand does not evaporate when a system declines to serve it. It relocates, and it relocates to two places: abroad, and into private arrangements with no oversight whatsoever.

Informal donor arrangements organised through social media exist in Japan and have been documented by Japanese journalism. This section describes exposure rather than routes, because the exposure is what a woman considering this needs to understand and the route is not something this essay will supply.

The first risk is identity. A donor in an unregulated arrangement is whoever he says he is. Japanese reporting has covered litigation arising from a case in which a woman alleged that a donor had misrepresented fundamental facts about himself — nationality, education, marital status. She had a child on the basis of the description and the description was not true.

The second is medical. Regulated donation involves screening for transmissible infection and for heritable conditions, and a quarantine interval. A private arrangement involves whatever the two parties decide to do, which is frequently nothing, and the consequences of an infection acquired this way fall on both the woman and the child.

The third is legal and is the least understood. Parentage in Japan does not follow the parties’ intentions. A private agreement that a donor has no rights and no obligations does not reliably bind anybody, and a man who provided material privately may have a legal relationship to the resulting child regardless of what the two of them wrote down — with everything that implies in both directions, including for custody, support and inheritance.

And a fourth, which the reporting makes clear and which decency requires stating: some arrangements advertised as donation are approached by men who expect or pressure for conception by intercourse. A woman entering an unregulated space in which she has no standing, no screening and no recourse is negotiating from a very weak position with a stranger who knows it.

None of this is an argument that the women doing it are foolish. They are doing it because the regulated system declined to serve them and the private one was the only door that opened. That is the vacuum producing exactly what a vacuum produces.

The other relocation is international, and its recent history is a study in a demand outrunning the jurisdictions willing to host it.

Japanese intended parents have used surrogacy arrangements in the United States, and formerly in several Asian and Eastern European countries that operated accessible commercial markets.

Those markets have been closing. Thailand restricted foreign commercial surrogacy sharply in 2015, in a process driven substantially by two scandals, one of which involved a Japanese man who had fathered a large number of children through multiple Thai surrogates. India moved through successive restrictions and then to a framework barring commercial and foreign arrangements. Other destinations have tightened or become unusable for other reasons.

The pattern is consistent and worth naming precisely. Countries that open commercial surrogacy to foreign clients discover that the arrangement concentrates the physical risk in women who are poorer than the clients, and they close it — usually after a case that makes the imbalance impossible to ignore.

Which produces a chain worth seeing whole. Japan declines to legislate. Demand goes abroad. The receiving country absorbs the ethical cost. The receiving country eventually closes. Demand moves to the next jurisdiction. At no point does Japan confront the question, and at no point is anybody in the chain protected by Japanese law.

The obvious conclusion is that Japan should legalise and regulate surrogacy, and that conclusion is not as safe as it sounds.

Surrogacy is genuinely contested everywhere, and the objection is not primarily religious. A substantial strand of feminist argument holds that commercial surrogacy converts a woman’s body and its risks into a service purchased by people with more money than she has, and that consent given under economic pressure is a poor guarantee. The closures described in the previous section were not driven by prudishness. They were driven by what happened to the surrogates.

So “legalise it” is not obviously the position that serves women. It depends entirely on which women. The woman who cannot carry a pregnancy and wants a child, and the woman who would carry one for money because her alternatives are worse, are both women, and their interests are not aligned.

What is defensible, and what this essay will argue, is narrower and much harder to dispute.

A vacuum protects nobody. It does not protect a surrogate, who has no defined rights and no enforceable terms. It does not protect intended parents, who may discover after the fact that the law does not recognise them. It does not protect a child, whose status is determined by a judgment written before they were born. And it does not even protect the moral position of a country that has declined to permit the practice, because the practice happens anyway, offshore, with Japanese citizens as clients.

Whatever the right answer is — permission with strict conditions, prohibition with consequences, or something else — an absence of law is the worst of the available options, and it is the one Japan has chosen by not choosing.

Almost everything in this subject is genuinely hard. One thing is not, and it deserves separating from the rest.

A person conceived from donated material should be able to find out that they were, and should be able to learn where they came from. There is no serious argument against this that survives contact with the people it concerns.

The counter-argument that exists is practical rather than principled: that removing anonymity reduces donation. Japan has demonstrated that this is true. It is also not a reason. A supply that exists only on condition that the resulting people are never told is a supply purchased with somebody else’s information, and the somebody else was not asked because they did not exist yet.

Several countries have moved to identity-release systems, accepted the reduction in donation, and adjusted. The children conceived under those systems are not harmed by knowing. The adults who found out by accident in their thirties, after decades of a family arrangement built on a concealment, generally report that the concealment was the injury rather than the fact.

Japan has been running donor conception since 1948 and has not settled this. The 2020 law deferred it again. That is a very long time to postpone a question whose answer is not actually in doubt.

How all of this bears on women’s roles has a specific answer rather than a general one, and there is a specific answer rather than a general one.

Japan’s framework encodes an assumption: that a woman who wants a child wants it inside a marriage, and that the marriage comes first. Every element reflects it — the guidelines restricting treatment to couples, the parentage rules organised around a husband’s consent, the two per cent, the administrative forms.

The women this essay is about have separated the two. Some want a child and not a husband. Some want a partner who cannot provide gametes. Some have a wife. Some ran out of time while the marriage question remained unresolved and decided the child mattered more.

What they share is that they have made childbearing a decision of its own, and Japanese institutions have no slot for a decision of its own. The result is not that these women are punished. It is that they are unrecognised, which is a different and quieter problem: no form asks the question, no guideline contemplates them, and the practical answer they receive is not no but nothing.

And there is a reversal inside this that is easy to miss. The conventional worry about declining birth rates assumes women are choosing not to have children. A portion of this population is choosing the opposite and being structurally obstructed — by a system that would rather they had no child than had one outside the arrangement it recognises. Whatever that system is optimising for, it is not births.

This essay is not legal advice and the field is moving. Anyone with a practical decision here needs a Japanese lawyer and, where a foreign jurisdiction is involved, one in that jurisdiction too. Nothing here should be relied upon for any actual decision.

The absence of a comprehensive Japanese surrogacy statute, the professional body’s guideline position, the 2007 Supreme Court holding that the birth mother is the legal mother together with its call for legislation, and the 2020 parentage law with its deferral of surrogacy and of origins information, are all matters of record. The description is of structure rather than of provisions, and specific applications vary.

Births outside marriage at around two per cent in Japan against forty to sixty per cent across much of Europe reflects official statistics on both sides. The precise figures move and vary considerably between European countries.

Donor insemination in Japan from 1948 is documented. The number of people born through it is genuinely unknown, and the range given reflects the absence of a register rather than a measurement. The curtailment of a long-running university programme when anonymity came into question is reported, and the causal link to donor withdrawal is the explanation given publicly.

The description of informal donor arrangements and their documented harms draws on Japanese reporting including litigation. Individual cases are described in outline and without identifying detail, and the pattern is described because women entering these arrangements need to understand the exposure. No figure for the scale of this activity is offered and none is reliably known.

The international closures — Thailand in 2015 and India through successive restrictions — are documented, as is the involvement of a Japanese case among the drivers of the Thai reform. The characterisation of a consistent pattern across destination countries is this essay’s reading of the sequence.

The feminist objection to commercial surrogacy is summarised as a position, not endorsed or refuted. The essay deliberately declines to prescribe on surrogacy itself and argues only that a vacuum is indefensible, which is a narrower claim.

And the argument about the right to know one’s origins is an ethical position, offered as one, though the essay considers it the least contestable claim in the subject.

There is very little a Library can offer somebody in the middle of this, and pretending otherwise would be worse than saying so.

The decisions here are legal, medical and financial. They need a lawyer who knows Japanese family law, a clinician, and in many cases a second set of both in another country. What is on offer here is none of those and cannot substitute for them.

What can be said is this. A woman navigating any part of the ground described above is doing something difficult, without a map, in a system that does not acknowledge she exists — and she is very likely doing it while being read by the people around her as somebody who left it too late, or wanted the wrong thing, or should have married. None of those readings is accurate and all of them are cheap.

The thing this Library can offer is the same thing it always offers, which is language: a way of describing what you are actually doing and why, in terms that do not require you to accept anybody else’s account of it.

And if it is useful — an evening in which somebody is paying attention, the terms set in advance and by you, where saying what you want is the activity rather than the risk, and where nothing is inferred from your silence. Not connected to any of the above, and not offered as a comfort for it. Just a few hours belonging to a person rather than to a decision.