2007.03.23

2006 (Kyo) 47

Minshu Vol. 61, No. 2

Decision concerning a judicial decision rendered by a foreign court acknowledging the establishment of a natural parent-child relationship between persons who are not eligible for such relationship under the Civil Code, and public policy as prescribed in Article 118, item 3 of the Code of Civil Procedure

Case of appeal with permission against the decision of the court of second instance to change the determination to dismiss the appeal against the deposition made by the municipal mayor

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

Tokyo High Court, Decision of September 29, 2006

1. A judicial decision rendered by a foreign court acknowledging the establishment of a natural parent-child relationship between persons who are not eligible for such relationship under the Civil Code is contrary to public policy as prescribed in Article 118, item 3 of the Code of Civil Procedure and therefore not effective in Japan.

2. In the case where a woman has conceived and delivered a child by way of assisted reproduction technology using another woman's egg, the mother of the child is the woman who has conceived and delivered the child, and a mother-child relationship cannot be established between the child and the woman who has not conceived and delivered the child, even where the child is born using the egg donated by that woman.
(There are concurring opinions concerning 2).

(Concerning 1) Article 118, item 3 of the Code of Civil Procedure, Part IV, Chapter 3, Section 1 of the Civil Code (Natural Children); (Concerning 2) Article 772, para.1 of the Civil Code

Article 118, item 3 of the Code of Civil Procedure
(Effect of Final and Binding Judgment by Foreign Court)
A final and binding judgment rendered by a foreign court shall be effective only if it satisfies all of the following requirements:
(iii) The contents of the judgment and the court proceedings in which it has been rendered are not contrary to public policy in Japan.

Article 772, para.1 of the Civil Code
(Presumption of Child in Wedlock)
A child conceived by a wife during marriage shall be presumed to be a child of her husband.

The decision of prior instance is quashed, and the appeal filed by the appellees against the decision of the first instance is dismissed.
The appellees shall bear the cost of the appeal to this court.

Concerning the reasons for the appeal argued by the appeal counsel, TSUZUKI Masanori, et al.

1. The appellees, a Japanese married couple, submitted to the appellant birth notifications of the twins conceived and delivered by a woman, who is a citizen of the United States and lives in the State of Nevada, by way of assisted reproduction technology (ART) using Appellee X1's sperm and Appellee X2's eggs (the twins shall hereinafter be referred to as the "Children"). The birth notifications indicated the appellees as the father and mother of the Children (these notifications shall hereinafter be referred to as the "Birth Notifications"). The appellant made a disposition to refuse to accept the Birth Notifications on the grounds that the fact of delivery of the Children by Appellee X2 cannot be found, and therefore a legitimate parent-child relationship cannot be found between the appellees and the Children. Against this disposition, the appellees filed an appeal for an order to accept the Birth Notifications pursuant to Article 118 of the Family Registration Act (this appeal shall hereinafter be referred to as the "Appeal").

2. According to the records, the history of this case is as follows:
(1) Appellee X1 and Appellee X2 are a couple who married in 1994.
(2) In 2000, Appellee X2 had a hysterectomy and pelvic lymphadenectomy to treat her cervical cancer. On this occasion, Appellee X2 had the ovaries moved outside the pelvis and preserved them so as to prevent them from being damaged by the radiation therapy to be performed after the operation. She did this because she thought that it might be possible, in the future, to have a child with the appellees' genes by having another woman conceive and deliver a child by way of ART using her own egg. This arrangement is generally called surrogate birth.
In 2002, the appellees concluded a surrogacy contract with a couple who lived in the United States, and attempted to arrange a surrogate birth on two occasions at a hospital in that country, but their attempts failed on both occasions.
(3) In 2003, the appellees decided to attempt a surrogate birth arrangement with the help of A, a women living in the State of Nevada, the United States. At C Center, on a certain day in 2003, Appellee X2's eggs taken from her ovaries were artificially inseminated with Appellee X1's sperm, and on a later day in 2003, two of the fertilized eggs obtained through this procedure were transplanted into A's uterus.
On May 6, 2003, the appellees concluded a surrogacy contract for value with A and her husband, B (hereinafter collectively referred to as "Couple A-B"). The contract provides as follows: A shall, through the procedures performed by a doctor designated by the appellees and recognized by A, take the fertilized eggs donated by the appellees in her own uterus, and if the transplantation of either of the fertilized eggs is successful, A shall carry the child until delivery; the appellees shall be the legal father and mother of the child to be born through the surrogate birth arrangement, and Couple A-B shall not have any legal rights for the child, such as the right of custody or right of visit, nor shall they have any responsibilities for the child (this contract shall hereinafter be referred to as the "Surrogacy Contract").
(4) In November 2003, A gave birth to twins, the Children, at D Center located in the State of Nevada.
(5) Article 45 of Chapter 126 of the Nevada Revised Statutes (NRS) provides as follows: Two persons in marriage may enter into a surrogacy contract. Any such contract must contain provisions on (a) the parentage of the child; (b) custody of the child in the event of a change of circumstances; and (c) the respective responsibilities and liabilities of the contracting parties (para.1). A person identified as an intended parent in a contract that satisfies these requirements must be treated in law as a natural parent under all circumstances (para.2). It is unlawful to pay or offer to pay money or anything of value to the surrogate except for the medical and necessary living expenses related to the birth of the child as specified in the contract (para.3). The same Chapter of the NRS also provides for the court procedures for determining the parent-child relationship.
Article 161 of the same Chapter of the NRS further provides that a judgment or order determining the existence or nonexistence of the relationship of parent and child is determinative for all purposes (para.1), and that if such a judgment or order is at variance with the child's birth certificate, the judgment or order must direct that a new birth certificate be issued (para.2).
(6) In late November 2003, the appellees filed an application with the Family Division of the Second Judicial District Court, State of Nevada, Washoe County (hereinafter referred to as the "Nevada State Court"), for the determination of a parent-child relationship. The court confirmed that (i) the appellees and Couple A-B acknowledged that the matters stated in the written application for the determination of parent-child relationship were true, and that (ii) Couple A-B desired that the Children would be determined as the appellees' children, while closely examining the relevant documents including the document for the Surrogacy Contract. Subsequently, on December 1, 2003, the court issued a judicial decision (i) declaring the appellees to be the natural father and mother by blood and by law of the children who were to be delivered by A in or around January 2004 (the Children) (para.1 of the main text), (ii) ordering the hospital where the children were to be delivered as well as the relevant authorities responsible for preparing their birth certificates to prepare and issue birth certificates identifying the appellees as their father and mother (para.2), and (iii) ordering the relevant State and County registrars to accept birth certificates thus issued and retain relevant records in accordance with law (para.3)(hereinafter this judicial decision is referred to as the "Judicial Decision")
(7) The appellees started to take care of the Children immediately after their birth. The government of the State of Nevada issued birth certificates for the Children, as of December 31, 2003, identifying Appellee A1 as their father and Appellee X2 as their mother.
(8) In January 2004, the appellees came back to Japan with the Children, and on January 22, they submitted to the appellant birth notifications of the Children, indicating Appellee X1 as their father and Appellee X2 as their mother (the Birth Notifications).
On May 28, 2004, the appellant notified the appellees of the disposition to refuse to accept the Birth Notifications on the grounds that the fact of delivery of the Children by Appellee X2 cannot be found, and therefore a legitimate parent-child relationship cannot be found between the appellees and the Children.

3. The court of the first instance dismissed the appeal against this disposition, whereas the court of second instance quashed the decision of the first instance and ordered the Birth Notifications to be accepted, on the following grounds.
(1) A final and binding judgment rendered by a foreign court prescribed in Article 118 of the Code of Civil Procedure can be construed to refer to a final judicial decision rendered by a foreign court, irrespective of the title, procedure or type of the decision, with regard to a legal relationship under private law, while guaranteeing due process for both parties (See 1994 (O) No. 1838, judgment of the Third Petty Bench of the Supreme Court of April 28, 1998, Minshu Vol. 52, No. 3, at 853). The Judicial decision rendered by the Nevada State Court, which declared that the appellees were to be legally regarded as the natural father and mother of the Children, determined a parent-child relationship, and in light of the categorization of judicial decisions in Japan, it is similar to a judgment on a suit of personal status or a determination set forth in Article 23 of the Act for Determination of Domestic Relations, and falls within the category of a final and binding judgment rendered by a foreign court.
(2) Concerning the requirement set forth in Article 118, item 3 of the Code of Civil Procedure
If the effect of the Judicial Decision is to be denied under Article 118 of the Code of Civil Procedure, the governing law for deciding whether or not a legitimate parent-child relationship can be found between the appellees and the Children would be the law of Japan, which is the appellees' national law. Since the provisions of the Civil Code of Japan concerning a legal mother-child relationship can be construed to mean that a woman who has delivered a child shall be the mother of the child, the appellees cannot be legally regarded as the parents of the Children. On the other hand, with regard to a parent-child relationship between Couple A-B and the Children, the governing law shall be the Nevada Revised Statutes (NRS), which is Couple A-B's national law, and according to the NRS, the Surrogacy Contract is valid, and this means that the appellees, not Couple A-B, are to be legally regarded as the parents of the Children. As a result, trapped between the legal system of Japan and that of the United States, the Children would be forced to resign themselves to the state of having no legal parents.
The requirement set forth in Article 118, item 3 of the Code of Civil Procedure, "the contents of the judgment and the court proceedings in which it has been rendered are not contrary to public policy in Japan," means the absence of any confusion in public policy in Japan (fundamental value or order in Japan that cannot be relinquished even when taking into account the international nature of the issue) that might arise from recognizing a judgment rendered by a foreign court as being also effective in Japan and integrating it in the rules of law of Japan. When determining whether or not this requirement is satisfied, we should, in light of the background circumstances described above, first examine the contents of the Judicial Decision individually and specifically, and then consider whether or not the recognition of the effect of the Judicial Decision substantially runs contrary to public policy in Japan. Having made such examination and consideration, we conclude that the recognition of the effect of the Judicial Decision does not substantially run contrary to public policy in Japan, on the following grounds.
(a) The Civil Code and the relevant legal systems in Japan were established in the age when ART had yet to be developed and conception occurred only naturally. As a result, the current legal system in Japan has not contemplated situations where conception or delivery of a child may be achieved also by way of artificial manipulation. However, this cannot be a reason to preclude any artificial conception or delivery of a child from the rules of law of Japan. Although it might be impossible under the Civil Code for a parent-child relationship to be determined based on a surrogacy contract, there is yet room to accept a judicial decision rendered by a foreign country determining the parentage for a child conceived or delivered by way of artificial manipulation in a foreign country, if it satisfies some rigid requirements.
(b) The Children were born using Appellee X2's eggs and Appellee X1's sperm, and therefore the appellees and the Children have relationships by blood.
(c) The Surrogacy Contract was concluded because, since Appellee X2 became incapable of conceiving a child due to receiving hysterectomy, etc. to treat her cervical cancer, the appellees had no option but to arrange a surrogate birth in order to have a child with their genes.
(d) As well, A offered to be a surrogate mother out of her spirit of volunteerism, and we cannot find any unjust aspect in her motive or intention. The Surrogacy Contract is a contract for value whereby the appellees shall pay a charge for A. However, the charge payable thereunder is the minimum payment for the labor provided by A and expenses incurred therefor (as allowed under the NRS), and it is not consideration for the Children. Nothing in the contents of the Surrogacy Contract can be prejudicial to A's dignity; the contract gives top priority to A's safety and life in all stages of the process of her conception and delivery, and guarantees A's right to abort or not to abort an embryo, denying the binding force of any contradictory promise.
(e) In this case, Couple A-B do not hope to be the parents of the Children, nor do they hope to take care of them. Further, the appellees have been taking care of the Children since immediately after their birth, and strongly desire to continue to take care of them in the future. The Children's welfare would not be harmed by identifying the appellees as their legal parents; rather, for their welfare, it would be best for them to be taken care of by the appellees.
(f) In discussions in the Committee on Assisted Reproductive Technology Treatment of the Health Science Council of the Ministry of Health, Labour and Welfare, it has been concluded that a surrogate birth arrangement should generally be prohibited. The surrogate birth arrangement disputed in this case, however, is not contrary to the six basic principles advocated by the committee as the reasons for prohibition: (1) Priority shall be given to the welfare of the children to be born; (2) The human body shall not be treated merely as the means of reproduction; (3) Careful consideration shall be given to safety; (4) The concept of eugenics shall be eliminated; (5) Commercialism in reproduction shall be eliminated; (6) Human dignity shall be respected. Currently, there is no legal provision that expressly prohibits a surrogacy contract, and therefore we cannot go so far as to say that any reasoning sufficient for precluding a surrogate birth arrangement has been established and accepted in Japanese society to date.
(g) In the discussions at the Committee on Legislation for Parent-Child Relationship Relating to Assisted Reproductive Technology Treatment of the Legislative Council, there was no objection to the idea that where a surrogate birth arrangement was performed in a foreign country and a decision was made to identify the clients as the natural parents of the child born through such arrangement, the surrogacy contract would run contrary to public policy in Japan and therefore the effect of that decision should not be recognized in Japan. The Judicial Decision, however, did not determine the parent-child relationship only based on the Surrogacy Contract, but rather determined it by also taking into consideration the fact that the Children had a parent-child relationship with the appellees by blood as well as the circumstances where Couple A-B hoped that the Children would be determined as the appellees' children and there was no dispute among the parties concerned over the parentage for the Children. Consequently, the Judicial Decision does not run contrary to public policy in Japan.
(h) With regard to the issue in bioethics as disputed in this case, we cannot deny that it seems somewhat odd that although the appellees can never be identified as the legal parents of the Children under the Civil Code of Japan, they could be the legal parents of the Children in Japan as a result of the recognition of the effect of the judicial decision rendered by the foreign court. However, according to many lower court judgments rendered to date as well as the practices in family registration (See the Directive Min-Ni No. 280 of January 14, 1976, issued by the Director-General of the Civil Affairs Bureau of the Ministry of Justice), a foreign judgment concerning personal status does not need to satisfy the requirements under the governing law but it should be recognized as being effective if it only satisfies the requirements set forth in Article 118 of the Code of Civil Procedure. This theory is conducive to stable international rules of justice, and we cannot find any reason to go against this theory only in this case.
(3) Consequently, the Judicial Decision is effective through application or analogical application of Article 118 of the Code of Civil Procedure, and the Children are the appellee's children in wedlock. Therefore, the Birth Notifications should be accepted.

4. However, the determination of the court of second instance mentioned in (2) and (3) above cannot be affirmed, on the following grounds.
(1) In order for a judgment rendered by a foreign court to be recognized as being effective in Japan, the contents of the judgment must not be contrary to public policy in Japan. Although it is inappropriate to deny the satisfaction of this requirement only because the judgment rendered by a foreign court involves a foreign system that is not adopted in Japan, if such foreign system is found to be incompatible with the fundamental principle or fundamental philosophy of the rules of law of Japan, the foreign judgment should be deemed to be contrary to public policy as prescribed in the said Article (See 1993 (O) No. 1762, judgment of the Second Petty Bench of the Supreme Court of July 11, 1997, Minshu Vol. 51, No. 6, at 2573).
A natural parent-child relationship is the most fundamental relationship concerning a person's status. It is the foundation for various relationships in social life, and in this respect, it does not only concern matters between private persons but is also deeply involved in the public interest, and it has a material impact on child welfare. The eligibility for a natural parent-child relationship is an issue concerning the fundamental principle or fundamental philosophy that serves as the basis of the rules of law on personal status in each country. Therefore, the criteria for the eligibility for a natural parent-child relationship should be definite and clear, and the existence or nonexistence of a natural parent-child relationship should be determined uniformly according to such criteria. Consequently, it should be construed that the Civil Code, which forms the rules of law on personal statuses in Japan, will acknowledge a natural parent-child relationship only in the cases set forth therein, while denying the establishment of a natural parent-child relationship in other cases. In conclusion, a judgment rendered by a foreign court acknowledging the establishment of a natural parent-child relationship between the persons who are not eligible for such relationship under the Civil Code, is incompatible with the fundamental principle or fundamental philosophy of the rules of law in Japan, and therefore it should be deemed to be contrary to public policy as prescribed in Article 118, item 3 of the Code of Civil Procedure. This conclusion would not be affected even if there is room, as a matter of legislative policy, to acknowledge the establishment of a natural parent-child relationship in cases other than those prescribed in the Civil Code.
(2) Although there is no provision in the Civil Code of Japan that directly stipulates the establishment of a mother-child relationship between a woman and her child born in wedlock, the Civil Code has a provision that seems to presuppose that the mother of a child is the woman who has conceived and delivered the child, and that a mother-child relationship shall be established immediately by the objective fact of conception and delivery of the child (see Article 772, para.1 of the Civil Code). It is also regarded that a mother-child relationship between a woman and her child born out of wedlock shall be established immediately by the objective fact of delivery of the child (See 1960 (O) No. 1189, judgment of the Second Petty Bench of the Supreme Court of April 27, 1962, Minshu Vol. 16, No. 7, at 1247).
The existing legal system of the Civil Code concerning a natural parent-child relationship is based on a parent-child relationship by blood. The reason why the Civil Code presupposes as the basis for such a system that a legal mother-child relationship shall be established immediately by the fact of delivery of the child may be that at the time of the enactment of the Civil Code, every woman who conceived and delivered a child had a genetic relationship with the child, and based on such a fact, the Civil Code was intended to acknowledge the establishment of a mother-child relationship between them by focusing the objective and apparent fact of delivery of the child. Another reason may be that it would be conducive to the child's welfare to definitely determine a mother-child relationship between a woman and the child delivered by her as soon as the child was born.
In light of when the Civil Code was enacted and when the aforementioned judicial precedent was rendered, it is obvious that the provisions under the Civil Code concerning the establishment of a mother-child relationship and the aforementioned judicial precedent undoubtedly presuppose that a woman should conceive and deliver a child using her own egg. However, 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 now possible for a woman to conceive and deliver a child by way of ART using another woman's egg. Under these circumstances, a question is posed regarding, in the case where the woman who has conceived and delivered a child and the woman who has donated her egg for the child are not the same, whether or not the existing Civil Code can be construed to also acknowledge the establishment of a mother-child relationship between the child and the woman who has conceived and delivered the child immediately by the fact of delivery of the child. In this respect, no provision of the Civil Code seems to be intended to acknowledge the maternity of the child for a woman who has not conceived or delivered the child. The absence of a provision specifying the legal relationship in such case is due to the fact that such situation was not anticipated at the time of the enactment of the Civil Code. However, considering that, as explained above, a natural parent-child relationship is deeply involved in the public interest as well as child welfare, and therefore it should be uniformly determined according to definite and clear criteria, there is no choice but to construe the existing Civil Code to require that a woman who has conceived and delivered a child shall be the mother of the child, and that a mother-child relationship cannot be deemed to be established between the child and the woman who has not conceived or delivered the child, even where the child is born using the egg donated by that woman.
It may be a publicly known fact, however, that some women, because of their strong desire to have children genetically related to them by using their eggs, ask other women to conceive and deliver children by way of ART using their own eggs, and children are actually born through such arrangements generally called surrogate birth. Since surrogate birth, which was not anticipated under the Civil Code, actually occurs and is expected to continue to occur in the future, it is necessary to start discussion about how to treat surrogate birth under the existing legal system. This issue should be considered in terms of both the legal system for medical services and the legal system for parent-child relationship, focusing on various possible problems such as the problems in terms of medical aspects, the problems expected to occur between the parties concerned, and the problems involving the welfare of a child to be born, while also taking into consideration the sincere desire of women to have children genetically related to them as well as the sense of ethics generally accepted in society regarding a woman's decision to ask another woman to deliver her child. In this area, there is strong demand that legislative measures should be taken promptly.
(3) According to the reasons explained above, it should inevitably be deemed that the Judicial Decision is incompatible with the fundamental principle or fundamental philosophy of the rules of law on personal status in Japan, and contrary to public policy as prescribed in Article 118, item 3 of the Code of Civil Procedure, because the Judicial Decision acknowledges the establishment of a natural parent-child relationship between persons who are not eligible for such relationship under the Civil Code, which forms the rules of law on personal status in Japan. Therefore, we should deny the effect of the Judicial Decision in Japan.
Accordingly, whether or not a legitimate parent-child relationship can be found between the appellees and the Children shall be decided by using the appellee's national law, i.e. the law of Japan, as the governing law (Article 28, para.1 of the Act on General Rules on Application of Laws). Since the Civil Code of Japan cannot be construed to acknowledge a mother-child relationship between Appellee X2 and the Children, we cannot find a legitimate parent-child relationship between the appellees and the Children.
(4) The determination of the court of second instance mentioned above contains an apparent violation of laws that has affected its judgment, and the decision of prior instance should inevitably be quashed. The appellant's argument is well-grounded. In addition, since the decision of the first instance dismissing the appellees' appeal is justifiable, the appeal filed by the appellees against the decision of the first instance shall be dismissed.

Therefore, the decision has been rendered in the form of the main text by the unanimous consent of the Justices. In addition to the court opinion, there is a concurring opinion by Justice TSUNO Osamu and Justice FURUTA Yuki and a concurring opinion by Justice IMAI Isao.

The concurring opinion by Justice TSUNO Osamu and Justice FURUTA Yuki is as follows.
There is no doubt that the appellees have been taking care of the Children, who were delivered by A (surrogate mother), and devoting their affection to them.
However, when construing the Civil Code and other relevant provisions in this case, it is necessary to consider the issue of parent-child relationship, not focusing on this case only but giving consideration to all possible cases where the woman who has donated an egg (egg donor) and the woman who has conceived and delivered a child using the egg (surrogate mother) are not the same.
A mother-child relationship is one of the most fundamental relationships of persons, and it is also an essential matter that affects a child's identity. Under the existing Civil Code, there is no special provision on a legal relationship between a child born through a surrogate birth arrangement, the surrogate mother, and the egg donor.
In countries where surrogate birth arrangements are performed, various problems have actually occurred, such as the surrogate mother feeling affection for the child she conceived and delivered and refusing to give the child to the clients, or the clients changing their mind and refusing to accept the child. When such a problem occurs, if the relationship between the surrogate mother, the egg donor, and the child is not clearly defined by law, the child's status would be insecure, and furthermore, a conflict would be caused between the parties concerned. This would be significantly prejudicial to the child's welfare.
If a surrogate birth arrangement is to be allowed in certain cases, from the perspective of the welfare of children to be born and the public interest of a parent-child relationship as well as protection of surrogate mothers, it is necessary to set clear requirements for recognizing the validity of a surrogacy contract. Furthermore, if the satisfaction of these requirements is to be the condition for acknowledging a natural parent-child relationship between a child born through a surrogate birth arrangement and the woman who requested the surrogate birth, the existence or nonexistence of a natural parent-child relationship would be decided based on the determination of the validity of the surrogacy contract, which will be made on a case-by-case basis. This would not only make a natural parent-child relationship unstable but also lead to a situation where some children are acknowledged as natural children while others are not, despite the fact that they are born through objectively the same process.
It is well understandable that there are special circumstances, as in this case, where a surrogate birth arrangement is the only way for a woman to have a child genetically related to her by using her own egg. Also, it is significantly important to ensure the welfare of a child born through such arrangement, and due consideration should be given to it. Nevertheless, under the present situation where there is no legal system for dealing with various problems that might arise from a surrogate birth arrangement, we cannot but hesitate to acknowledge the maternity of a child as the woman who has donated the egg, by changing the principle of acknowledging the maternity of a child as the woman who has conceived and delivered the child, thereby actually bringing a new life into existence.
Since the same or similar problems are expected to be raised in the future due to the progress in ART, we strongly hope that legislative measures will be taken as soon as possible to solve the issues of surrogacy and parent-child relationships involving the persons concerned, while taking into consideration the various problems suggested in the court opinion.
Viewing the circumstances in other countries, surrogate birth arrangements are allowed in some states of the United States as well as the United Kingdom, but there is difference in terms of how to handle such arrangements; in some places, the surrogate mother is provisionally identified as the mother of the child, and then the procedure to identify the clients as the parents of the child shall be taken after birth; in other places, the clients shall be identified as the parents of the child upon birth. The requirements for the validity of a surrogacy contract also differ from place to place. On the other hand, in Germany, France, and other states of the United States, surrogacy is prohibited completely, and if a child is born through a surrogate birth arrangement, the surrogate mother shall be identified as the mother of the child. In such case, an adoption between the child and the clients is allowed in some places and is not allowed in other places. Thus, there are diverse legal systems regarding surrogacy depending on the circumstances in individual countries or regions. This fact suggests that opinions would necessarily be divided regarding surrogacy in various aspects, and for this reason, legislative measures are strongly demanded in this area.
In this case, due consideration should be given to the appellees' desire to take care of the Children as their own children, and to fulfill their desire, a legal parent-child relationship should be established between them. Given the fact that A and B manifested to a court, although it is a foreign court, the intention to agree to identify the appellees as the Children's parents because they do not desire to take care of the Children by themselves, we find enough room, even under the existing Civil Code, to establish a special adoption between the appellees and the Children.

The concurring opinion by Justice IMAI Isao is as follows.
I am in agreement with the court opinion that a legitimate parent-child relationship cannot be established between the appellees and the Children. However, I would like to state my opinion regarding how to solve the issue of parent-child relationship in a situation that is not anticipated by the Civil Code, as is the situation in this case.
The issue directly questioned in this case is whether a foreign judicial decision acknowledging a natural parent-child relationship between the appellees and the Children is effective in Japan. As the court opinion indicates, however, if the contents of a foreign judgment addressing an issue concerning the fundamental principle or fundamental philosophy that serves as the basis of the rules of law on personal status in Japan, the issue of parent-child relationship, are unacceptable based on the construction of the Civil Code of Japan, such decision will not be deemed to be effective in Japan on the grounds that it is contrary to public policy as prescribed in Article 118, item 3 of the Code of Civil Procedure. Therefore, in the end, it is a question of how to construe the maternity of the child who is born through a surrogate birth arrangement within the framework of the Civil Code of Japan.
Along with the rapid progress in medicine, various new technologies are being developed and put into practice in the field of ART. Such advance in technology has made it possible for men and women, married or not, who are otherwise incapable of having their own children, to fulfill their wish. However, this has also caused various legal problems that have never been anticipated before. One of such problems is the issue of whether or not a father-child relationship can be established between a child born as a result of in vitro fertilization using a frozen egg and the man who has donated the egg (See 2004 (Ju) No. 1748, judgment of the Second Petty Bench of the Supreme Court of September 4, 2006, Minshu Vol. 60, No. 7, at 2563). The issue of surrogacy disputed in this case is also included in these problems. Since these problems concerning the law of personal status that occur along with the advance in technology were not anticipated when the Civil Code was enacted, it is no wonder that the Civil Code does not have any provisions addressing these problems. It is not appropriate to immediately deny a legal parent-child relationship only because it is not provided for in the Civil Code. It is the duty of the court to examine the contents of the legal relationship in dispute and acknowledge the relationship if it is acceptable based on the construction of the existing Civil Code.
However, as the court opinion states, the establishment of a personal relationship, especially a natural parent-child relationship, is the foundation for various relationships in social life, and it is an issue concerning the fundamental principle or fundamental philosophy that serves as the basis of the rules of law on personal status. Therefore, we should consider it not only from the perspective of whether or not to protect the rights and interest of the parties concerned in specific cases, but also from the perspective of what would become of the rules of law on personal status in Japan if the relationship in dispute is legally acknowledged.
In this case, the court of second instance determined the following facts: (i) The appellees and the Children have relationships by blood; (ii) The appellees had no option but to arrange a surrogate birth in order to have a child with their genes; (iii) The Surrogacy Contract cannot be found to contain any unjust aspect regarding the motive or intention of concluding it, nor can it be found to have any aspect that is prejudicial to the surrogate mother's dignity; (iv) The surrogate mother and her husband do not hope to accept the Children as their children whereas the appellees strongly desire to take care of the Children as their natural children. In order to ensure the welfare of the Children, it might be desirable to acknowledge a legal natural parent-child relationship between the appellees and the Children. However, the situation is not so simple. We should consider this issue by also taking into consideration any possible influence on the rules of law on personal status in Japan that would occur if a natural parent-child relationship is legally acknowledged between the parties of this case. There are diverse opinions on surrogacy, regarding whether or not it is allowable from the perspective of bioethics or medical ethics, and if it is allowable at all, what conditions should be imposed. In addition, how to coordinate legal relationships between the child born through a surrogate birth arrangement, the surrogate mother, the egg donor, and other parties concerned is also a controversial issue. If the existing Civil Code of Japan is construed in the direction toward legally acknowledging a natural parent-child relationship between the appellees and the Children in this case, it would result in ratifying a surrogate birth arrangement for which, at present, there is a controversy regarding the appropriateness of its implementation and negative views are frequently heard in medical circles, while leaving legal issues affecting the parties concerned unsolved. In my opinion, such a situation should be avoided.
In order to solve this problem, it is necessary to develop a legal system for surrogacy by considering the various matters concerned from the perspective of medical services law and parent-child relationship law. More specifically, from the perspective of medical services law, consideration should be made regarding whether or not a surrogate birth arrangement is acceptable, and if it is acceptable at all, what conditions should be imposed. From the perspective of parent-child relationship law, sufficient consideration should be made, based on the results of the consideration from the perspective of medical services law, regarding how to coordinate legal relationships between the child born through a surrogate birth arrangement, the surrogate mother, the egg donor, the spouses of these women, and other parties concerned. A legal system for surrogacy should be developed based on consideration on these matters. The issues of how to protect the legitimate rights and interest of the parties concerned and how to ensure the child's welfare cannot be solved fairly and equitably until a legal system for surrogacy is adequately developed.
Since the issue of surrogacy involves many parties who have different opinions, it may not be necessarily easy to establish an adequate consensus among them. However, if this issue is left unsolved because of the difficulty in solving it, that would result in the accumulation of faits accomplis, which is obviously never beneficial to the welfare of children to be born through surrogate birth arrangements. In order to ensure that many people can enjoy the benefit of the progress in medicine without any worries, efforts should be made to establish a consensus in society and take legislative measures based on such consensus.
In addition, I agree with the concurring opinion by Justice TSUNO Osamu and Justice FURUTA Yuki in that there is enough room to establish a special adoption between the appellees and the Children.

Justice FURUTA Yuki
Justice TSUNO Osamu
Justice IMAI Isao
Justice NAKAGAWA Ryoji