2006.09.04

2004 (Ju) 1748

Minshu Vol. 60, No. 7

Judgment concerning whether or not a legal parent-child relationship can be established between a man and a child conceived and delivered by a woman as a result of an artificial reproduction procedure conducted after the man's death by using his frozen sperm

Case to seek acknowledgement

Judgment of the Second Petty Bench, quashed and decided by the Supreme Court

Takamatsu High Court, Judgment of July 16, 2004

A legal parent-child relationship cannot be established between a man and a child conceived and delivered by a woman as a result of an artificial reproduction procedure conducted after the man's death by using his frozen sperm.
(There are concurring opinions.)

Article 787 of the Civil Code
(Action for acknowledgement)
A child or any of his or her lineal descendants or the statutory representative thereof may file an action for acknowledgement; provided, however, that this shall not apply where three years have elapsed from the day when the child's mother or father died.

The original judgment shall be quashed.
The appeal to the court of the second instance filed by the appellee at the court of the last resort shall be dismissed.
The appellee at the court of the last resort shall bear the cost of the appeal to the court of the second instance and the appeal to the court of the last resort.

Concerning the reasons for the petition for acceptance of appeal to the court of the last resort argued by the appellant at the court of the last resort
1. The outline of the facts legally determined by the court of the second instance is as follows:
(1) A and B got married in 1997 (they shall hereinafter be referred to as the "Couple").
(2) Since before marriage, A had received treatment for chronic myelogenous leukemia, and about six months after marriage, it was decided that A would undergo a bone marrow transplantation. After getting married, the Couple started to receive fertility treatment, which never succeeded in allowing B to conceive a child. Fearing that A might suffer from azoospermia due to the exposure to massive radiation required to perform bone marrow transplantation, the Couple froze A's sperm at a hospital (the frozen sperm shall hereinafter be referred to as the "Frozen Sperm") in June 1998.
(3) In summer 1998, before having the bone marrow transplantation, A told B that if she would not marry another man after becoming widowed by his death, he wanted her to give birth to his child. Furthermore, immediately after having the bone marrow transplantation, A told his parents his hope that in the event of his death, B would give birth to his child as his successor using the Frozen Sperm. A also told such hope to his brother and aunt.
(4) The Couple, in May 1999 when A returned to work after having a successful bone marrow transplantation, decided to try fertility treatment again, and at the end of August 1999, they obtained consent from another hospital for accepting the Frozen Sperm and performing in vitro fertilization (IVF) using it. However, A died in September 1999, before IVF was performed.
(5) After A's death, B consulted with A's parents and decided to undergo IVF using the Frozen Sperm. By the end of 2000, B underwent IVF using the Frozen Sperm at that hospital and conceived, and in May 2001, she delivered the appellee at the court of the last resort as a result of IVF.

2. In this case, the appellee born through the process described above seeks from the public prosecutor posthumous acknowledgement of A's paternity of the appellee.

3. According to the facts mentioned above, the court of the second instance upheld the claim for acknowledgment by quashing the judgment of the first instance that had dismissed the claim for acknowledgement, holding as follows:
(1) Article 787 of the Civil Code was enacted in the age when assisted reproductive technology (ART) had yet to be developed, and conception and delivery of a child occurred only through natural reproductive acts between man and woman (hereinafter such reproduction shall be referred to as "Natural Reproduction," and reproduction artificially conducted by using ART shall be referred to as "Artificial Reproduction"). Such a background of this provision cannot be a reason to conclude that it is unallowable at all for a child conceived and delivered by a woman as a result of an Artificial Reproduction, which was conducted by using a man's frozen sperm after the man's death (hereinafter referred to as a "Child Conceived after the Father's Death"), to seek acknowledgement of the man's paternity.
(2) An action for acknowledgment prescribed in Article 787 of the Civil Code allows establishment of a legal parent-child relationship based on the existence of a parent-child relationship by blood that can be objectively found in cases where the father or mother of a child born out of wedlock does not voluntarily acknowledge and report that the child is his or her own child. Therefore, the father's existence at the time of conception of the child cannot be required as a condition to uphold a claim for acknowledgement. If the father's paternity of a Child Conceived after the Father's Death is acknowledged, the child cannot inherit the father's estate or enjoy the father's custody, care or support but can legally benefit from the kinships created with the father's relatives, which may give the child the right of inheritance per stripes of the father's lineal relatives by blood.
Where a wife has conceived a child through Natural Reproduction, the husband had the intention to make his wife pregnant. However, where a wife has conceived and delivered a child as a result of an Artificial Reproduction by using the husband's frozen sperm, if all children born through such process are recognized as eligible to claim acknowledgement irrespective of the father's intention, children who have the potential for having a legal parent-child relationship with the husband could be born without any involvement of the husband's intention, imposing unexpectedly heavy burden on the husband. To avoid such an unreasonable consequence, it should be construed that in order to uphold a claim for acknowledgement of paternity made by a child born as a result of an Artificial Reproduction explained above, the husband (father) must have consented to the conception by the artificial reproduction procedure.
Consequently, in order for a claim for acknowledgement of paternity made by a Child Conceived after the Father's Death to be upheld, unless there are special circumstances where it is unreasonable to acknowledge the father's paternity of the child, it seems necessary and sufficient that a parent-child relationship by blood exists between the child and the father and that the father has consented to the Artificial Reproduction that resulted in the conception of the child.
(3) Since the appellee was conceived and delivered by B as a result of the IVF performed after A's death by using the Frozen Sperm, a parent-child relationship by blood exists between the appellee and A. Also, A seems to have consented to B's giving birth to his child after his death by using the Frozen Sperm. On the other hand, even by examining all articles of evidence submitted in this case, it is impossible to find any special circumstances where it is unreasonable to uphold the appellee's claim for acknowledgment. Therefore, the appellee should be deemed to have satisfied the above-mentioned requirements for his claim for acknowledgement of A's paternity to be upheld.

4. However, the determination of the court of the second instance mentioned in (2) and (3) above cannot be affirmed, on the following grounds:
Under the legal system of the Civil Code concerning a natural parent-child relationship, a legal parent-child relationship shall be established between a child and his/her parent based on their parent-child relationship by blood, which is proven naturally by reason of birth in the case of a child born in wedlock or on the condition of acknowledgement of paternity in the case of a child born out of wedlock. A child and his/her parent having such a legal parent-child relationship shall be entitled to legal relationships between child and parent or their relatives provided for in the Civil Code.
Today, Artificial Reproduction by ART does not only serve as a substitute for part of the process of Natural Reproduction but has made it possible to realize a form of conception that can never be achieved by Natural Reproduction. It is obvious that the current legal system explained above does not anticipate a parent-child relationship between a Child Conceived after the Father's Death, who is born through such Artificial Reproduction, and the deceased father. More specifically, where a child is conceived after the father's death, which means that the father is already dead before the child's birth, there is no possibility for the father to have parental authority over the Child Conceived after the Father's Death. Similarly, it is impossible for the Child Conceived after the Father's Death to enjoy the father's custody, care or support, and it is also impossible for the child to become the father's heir. In addition, with respect to the possibility of inheritance as an heir per stirpes, since the system of per stripes was introduced to allow an heir per stirpes to inherit the original heir's share in inheritance of the decedent's estate, it is construed that in the case of inheritance by an heir per stirpes due to the original heir's death, the heir per stirpes must be eligible for inheritance of the original heir at the time of inheritance of the decedent. According to this, a Child Conceived after the Father's Death, who is not eligible for inheritance of the father or the original heir, cannot be an heir per stirpes because of his/her relationship with the father. Thus, between a Child Conceived after the Father's Death and the deceased father, there is no room under the current legal system explained above for the occurrence of basic legal relationships based on a legal parent-child relationship. Consequently, the issue of a legal parent-child relationship between them should, in principle, be resolved by legislation on whether or not to recognize their legal parent-child relationship, and if it should be recognized, what the requirement or effect of such relationship should be, after considering it from various perspectives such as bioethics concerning an Artificial Reproduction conducted by using the frozen sperm of a deceased person, welfare of a child born through such a process, the awareness of related people who are supposed to have relationships with the child as his/her parents or relatives, and the public opinion on these matters. Since there is no such legislation at present, it is inappropriate to establish a legal parent-child relationship between a Child Conceived after the Father's Death and the deceased father.
For the reasons stated above, the appellee's claim for acknowledgement should be deemed to be groundless, and the determination of the court of the second instance that is contrary to this reasoning contains a violation of laws and regulations that apparently affects the judgment. The appellant's argument is well-grounded in this respect, and the original judgment should inevitably be quashed. Based on the reasoning explained above, the judgment of the first instance that dismissed the claim for acknowledgment is justifiable, and therefore the appeal to the court of the second instance filed by the appellee at the court of the last resort should be dismissed.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices, except that there are concurring opinions by Justice TAKII Shigeo and Justice IMAI Isao.

The concurring opinion by Justice TAKII Shigeo is as follows:
I am in agreement with the conclusion of the court opinion, but I would like to give my concurring opinion on the reasons attached thereto.
1. An action for acknowledgment prescribed in Article 787 of the Civil Code may be filed in order to establish a legal parent-child relationship based on the parent-child relationship by blood, even in cases where the father or mother of a child born out of wedlock does not voluntarily acknowledge and report that the child is his or her own child. Even after the father or mother died, the child or his/her statutory representative may also file this action within a limited period. In light of the time when the Civil Code was enacted, this system of action for acknowledgment should be understood to be enacted for a child born through Natural Reproduction.
Today, the possibility has dramatically increased to have a child by using ART. As explained above, the legal system of the Civil Code concerning a natural parent-child relationship initially anticipated a parent-child relationship with respect to a child born through Natural Reproduction, but where a child is conceived and delivered as a result of his/her parents having received, of their own will, advanced medical treatment to assist part of the process of Natural Reproduction, such conception and delivery can be deemed to have been caused by Natural Reproduction, and there is no problem with recognizing a legal parent-child relationship between the child born through such process and his/her parents. On the other hand, where a child is conceived and delivered by using frozen sperm of a person who is already dead, as in this case, such conception and delivery is contrary to the providence of nature that a child should be born from the gametes of the parents in life, and it is obviously not anticipated under the above-mentioned legal system. It is true that a blood relationship exists between a deceased person and a child born from the person's frozen sperm donated in his lifetime. However, the Civil Code recognizes a legal parent-child relationship between the child and the parent who are not related to each other by blood, by presuming the child's birth in wedlock and restricting denial of such presumption as well as by restricting acknowledgment of paternity. At the same time, it denies a legal parent-child relationship between the child and the parent who are related to each other by blood. Thus, the Civil Code does not give absolute priority to blood relationship. This means that the existence of a blood relationship cannot necessarily be a reason to recognize a legal parent-child relationship. Furthermore, although the Civil Code does not explicitly provide that an action for acknowledgement of paternity of a child may be filed only where the father has been alive at the time of conception of the child, this requirement should be deemed to be a natural premise under the existing legal system that is based on the assumption of Natural Reproduction. Therefore, the lack of an explicit provision of this requirement cannot be a ground to recognize a legal parent-child relationship between a deceased person and a child born from the person's frozen sperm donated in his lifetime.

2. There is an opinion that where the deceased sperm donor gave a clear consent in his lifetime to the conception of a child using his sperm, there is no problem with recognizing a legal parent-child relationship between the donor and the child. However, a child is, in principle, born with both father and mother being alive, and except in unfortunate cases where the father is already dead or unknown at the time of the child's birth, the father is generally expected to be alive at the time of conception of the child, so that the child will be raised in the environment where he/she is mentally or materially blessed by the parents. A child born from the frozen sperm donated by the deceased person is unable to expect this from the beginning. It is still necessary to fully consider whether or not it is appropriate at all to give birth to such a child based on the sperm donor's living consent. If parents were allowed to give birth to their child based on their agreement even where father is already dead at the time of conception of the child, it would give excessive emphasis on the parents' intention and self-determination. In my opinion, in order to allow such a child's birth, there is no way but to wait for legislation regarding the content of the donor's living consent and relevant procedure.
In Japan, the legislative process does not always seem to be progressing speedily along with changes in social circumstances or advance in science. Therefore, there may be cases where judiciary is required to make a determination to make up for a lack of law. However, in order to make a determination as to whether or not to affirm a legal parent-child relationship with respect to a child born through the use of advanced medical technology as in this case, for which nobody has ever attempted to make a determination, it is necessary to balance various concepts of value concerning what should be a legal parent-child relationship and adjust relevant legal systems appropriately. It is inappropriate for the judicial authority to hastily affirm a legal parent-child relationship in such case only because of the existence of a blood relationship and the parents' agreement.
Currently, the Committee on Legislation for Parent-Child Relationship Relating to Assisted Reproductive Technology Treatment within the Legislative Council of the Ministry of Justice is discussing enactment of special provisions of the Civil Code regarding a parent-child relationship with respect to a child born with the help of ART using donor sperm, eggs or embryos. In this Committee, although a certain consensus is being reached on how to affirm a parent-child relationship with respect to a child born to husband and wife with the help of ART using a third party donor's sperm, etc., discussion has not yet matured regarding a father-child relationship between the sperm donor and the child conceived after the donor's death with the help of ART using the donor's frozen sperm. This may be because a consensus has not yet been reached on the fundamental issues, such as whether or not it is allowable to apply ART using frozen sperm after the death of the sperm donor.
Reportedly, the current progress in life science, particularly in ART, has contributed to the birth of quite a few children whose existence was initially not anticipated under the existing legal system of the Civil Code concerning a natural parent-child relationship. Due to the lack of relevant legal regulations, however, the application of ART, which enables the birth of such children, is currently left subject to self-regulations implemented by medical circles or medical groups. I can understand and have no objection to the idea that, irrespective of whatever regulations should be provided at all, priority must be given to the welfare of children who have already been born into the world. However, what significance exists in affirming a legal parent-child relationship for the welfare of an already-born child who was conceived after the father's death, has not yet been fully ascertained. In this context, we should consider not only how to realize the welfare of an already-born Child Conceived after the Father's Death but also what it means to give birth to such a child based on the parents' intention, and what should be a legal parent-child relationship. Within the framework of these issues, we should consider what should be the welfare for a Child Conceived after the Father's Death. If, only for respecting the welfare of a Child Conceived after the Father's Death who has already come into existence, a legal parent-child relationship between the child and the deceased father were affirmed based on the existence of a blood relationship and the parents' intention, it would mean that law gives up its responsibility for the birth of children whose father is already dead at the time of conception. This is what I worry about. Although no one can deny the importance of respect to the welfare of already-born children, we must not, by overly emphasizing it, neglect to think of what it means to give birth to a Child Conceived after the Father's Death and what it means to have a legal parent-child relationship, as well as how to treat a Child Conceived after the Father's Death who is to be born irrespective of his/her intention.

3. In my opinion, this issue should not be left to the self-regulations implemented by medical circles or medical groups any more, and it is inappropriate to neglect the current situation where a number of faits accomplis are being accumulated in the name of medical practices. Amid the progress in medical technology and the changes in social awareness of today, necessary legislative measures should be taken promptly after studying how to frame a legal system for parent-child relationships with respect to children born with the help of ART including those conceived after the father's death, whose existence was initially not anticipated under the existing legal system of the Civil Code.
Besides, the family register in Japan is an important system that has no equivalent in other countries, and a blank in the section of father in the family register causes considerable social disadvantages to the child. Consideration should also be given so as to enable a child to find out his/her origin. Whatever form a future legal system for parent-child relationships will take in line with advance in life science, when today's progress in ART is taken into account, it is impossible to avoid the birth of children that is contrary to that legal system or not anticipated in the Civil Code. In the course of developing a future legal system for parent-child relationships, reforms should also be made to the Family Register Act by giving consideration to the situation in which children born with the help of ART will be placed, apart from the issue of legal parent-child relationships.

The concurring opinion by Justice IMAI Isao is as follows:
1. In this case, a child conceived and delivered as a result of the IVF that was performed after the father's death by using his frozen sperm donated in his lifetime and the mother's eggs (hereinafter referred to as "Child Conceived after the Father's Death"), has filed an action against the public prosecutor for acknowledgment of the deceased father's paternity of the child.
The significant progress in science and technology, especially steady advance in ART, is causing various legal problems, one of which is an action for acknowledgement of the father's paternity of a Child Conceived after the Father's Death, as in this case.

2. Under the existing legal system for father-child relationship, a child born to husband and wife in marriage shall be recognized as having a father-child relationship with the husband as his legitimate child, whereas a child born to man and woman not in marriage shall be recognized as having a legal father-child relationship based on the acknowledgment of paternity by the biological father. In the latter case, if the father refuses to acknowledge his paternity, the child and any other eligible person may file an action for acknowledgment, which may result in a judgment to establish a legal father-child relationship between the child and the biological father. The existing legal system basically governs a father-child relationship with respect to children conceived by Natural Reproduction, and it obviously does not address a father-child relationship between a Child Conceived after the Father's Death and the deceased father. The Civil Code provides for the procedure to claim posthumous acknowledgment in the case where the father died after the conception of the child, but does not anticipate such a case where the father is already dead at the time of conception or include any provision on the establishment of a legal father-child relationship in that case. This action has been filed by such a child to seek acknowledgment by applying mutatis mutandis or analogically applying the provisions on posthumous acknowledgment.

3. As ART has gradually become popular, the number of children conceived and delivered with the help of ART has been increasing. Under such circumstances, the existing legal system is construed to recognize a legal parent-child relationship, especially father-child relationship, with respect to such children under certain conditions. However, in all past cases where a father-child relationship was affirmed, the biological father was alive at the time of conception of the child, and there was no such case where the biological father was already dead at the time of conception, as in this case.
It is controversial in medical circles as to whether or not it is allowable to use donor sperm after the donor's death in order to realize conception of a child by Artificial Reproduction, and no consensus has been reached yet in this respect. It relates to the birth of a human being, a sophisticated issue in bioethics, and therefore deep insight is required as to the public awareness of this issue.

4. The Committee on Assisted Reproductive Technology Treatment of the Health Science Council of the Ministry of Health, Labour and Welfare discussed the development of a system for appropriate application of ART based on the report by the Special Committee consisting of experts in medicine (obstetrics and gynecology), nursing science, bioethics, and law. People from various fields participated in the discussion, such as experts in pediatrics, psychiatry, counseling, and child/social welfare, people engaged in medical services, people from organizations of infertility patients, and academic experts in other fields. On April 28, 2003, the committee released the "Report on Development of the System for Assisted Reproductive Technology Treatment Using Donor Sperm, Eggs, and Embryos," which states the following basic principles: "Priority shall be given to the welfare of the children to be born; The human body shall not be treated merely as the means of reproduction; Careful consideration shall be given to safety; The concept of eugenics shall be eliminated; Commercialism in reproduction shall be eliminated; Human dignity shall be respected." Based on these principles, the committee defined the qualifications for recipients of donor sperm, eggs, and embryos and those for donors of sperm, eggs, and embryos, as well as the conditions for the application of ART by using donor sperm, eggs, and embryos. With respect to how to handle donor sperm in the event of the donor's death, the committee recommended that such donor sperm should be discarded when the donor's death is confirmed, for the following reasons: if the donor sperm are used after the donor's death, it would result in the birth of a child from the sperm of a person already deceased, posing a serious ethical problem; in the event of the donor's death, it is impossible for the donor to revoke his intention, which means that it is impossible to confirm the donor's intention; for a child born from such sperm, his/her biological father (the donor) never exists from the beginning of his/her life, also posing a problem from the perspective of the child's welfare.
Furthermore, on July 15, 2003, the Committee on Legislation for Parent-Child Relationship Relating to Assisted Reproductive Technology Treatment of the Legislative Council released the Interim Draft of the Outline of the Special Provisions of the Civil Code Concerning Parent-Child Relationship with respect to Child Born through Assisted Reproductive Technology Treatment Using Donor Sperm, Eggs, and Embryos. In this interim draft, the committee states that, with respect to the case where a child is born after the father's death with the help of ART by using the father's frozen sperms, careful consideration should be given based on the idea on what would be an ideal legal system for medical services to regulate ART in such case, while taking into account the child's welfare and the parents' intention; since it is inappropriate for the committee to develop its own rules on the legal system for parent-child relationships before an ideal legal system for medical services is clearly established, the committee refrains from further discussing this issue.
As explained above, discussions have been held and various opinions have been presented with respect to how to treat a Child Conceived after the Father's Death under the legal system for medical services as well as the legal system for parent-child relationship, but legislative measures have not yet been taken so far.

5. Under such circumstances, apart from whether it is appropriate or not, a deceased person's frozen sperm is actually used to give birth to a child as in this case, posing a question as to how to treat a father-child relationship between the child and the sperm donor.
There should be no objection to giving priority to the welfare of the child who has already been born to the world through this process. The question is, if a legal father-child relationship is to be established between the deceased father and the Child Conceived after the Father's Death, what advantages the child would receive under the existing law and what legal relationships would occur between the child and people around him/her. The essential and fundamental legal relationships between the father and his legal child are parental authority, support, and inheritance. Under the existing legal system, as the court opinion points out, even if a claim for acknowledgement of the deceased father's paternity is upheld, there is no possibility that fundamental legal relationships between the father and his legal child, such as parental authority, support, and inheritance, will occur between the deceased father and the Child Conceived after the Father's Death, but there is only the possibility that the child will have kinships with father's relatives and this may give rise to the right and obligation of support between the child and the relatives. Thus, the advantages that the child would receive from acknowledgment are not so significant, and it should inevitably be said that there is little need to establish a father-child relationship in this case by going so far as to recognize a legal relationship that is far deviant from the existing legal system. It is true that with respect to parental authority and support, the same shall apply to the case of posthumous acknowledgment of a child conceived naturally in that there is no possibility for the child to have such legal relationships with the father. However, in such case, it is expected at the time of conception of the child that legal relationships such as parental authority and support will occur, but the unexpected death of the father after conception has made it impossible for the child to have such relationships. It is different from the case of conception after the father's death, in which at the time of conception, there is already no possibility for the occurrence of such relationships.
It is unquestionable that a Child Conceived after the Father's Death is not responsible at all for his/her birth, and therefore, is eligible to be respected as an individual like a child conceived naturally, and needless to say, it is impermissible to cause disadvantages to such a child by reason of a flaw in legislation. I can emotionally understand the arguments of the appellee and his/her statutory representative in this respect. However, as explained above, the advantages that the Child Conceived after the Father's Death would receive from acknowledgment are not so significant, whereas if a claim for acknowledgment were upheld in this case, it would pose a serious problem that the fait accompli of the birth of a child conceived after his father's death would be legally ratified without sufficient consensus in society. This is an inappropriate consequence.
In order to ultimately resolve this issue, legislative measures should be taken based on discussions from various perspectives in terms of both the legal system for medical services and the legal system for parent-child relationship. In other words, it is necessary to consider fundamental issues of whether or not it is acceptable under the legal system for medical services to perform insemination by using frozen sperm after the death of the sperm donor, and if it should be acceptable, what requirements should be satisfied for the performance of insemination. Then, with respect to the legal system for parent-child relationship, it is necessary to fully consider, based on the consideration on the legal system for medical services, what requirements should be satisfied to recognize a father-child relationship between the deceased father and the child born as a result of artificial insemination performed after the father's death, and if it should be recognized, what effect should be given to such relationship and appropriate legislative measures should actually be taken based on the consideration on these matters. The welfare of such a child will never be realized until such legislative measures are taken appropriately. In light of the rapid progress in ART, early establishment of a necessary legal system is desired.

Justice NAKAGAWA Ryoji
Justice TAKII Shigeo
Justice TSUNO Osamu
Justice IMAI Isao