2024.06.21

2023 (Ju) 287

Minshu Vol. 78, No. 3

(Civil Case)Judgment concerning whether a child born out of wedlock can seek acknowledgment of paternity from a person who caused a biological woman to conceive the child using the person's sperm, regardless of the person's gender which is to serve as the basis for application of laws and regulations

Case seeking filiation

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

Tokyo High Court, Judgment of August 19, 2022

A child born out of wedlock can seek acknowledgment of paternity from a person who caused a biological woman to conceive the child using the person's sperm, regardless of the person's gender which is to serve as the basis for application of laws and regulations.

Article 787 of the Civil Code; Article 3 of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder

The judgment in prior instance is quashed with respect to its part concerning the appellant of final appeal, and the judgment in first instance is revoked with regard to that quashed part.

The appellant of final appeal is acknowledged as a child of the appellee of final appeal.

The total court costs shall be borne by the appellee of final appeal.

Concerning Reason IV for a petition for acceptance of final appeal stated by the counsel for final appeal, NAKAOKA Shun, et al.

1. In this case, the appellant seeks acknowledgment of paternity from the appellee.

2. The outline of the facts lawfully determined by the court of prior instance (including publicly known facts) is as follows.

(1) The appellee (born on [date]) cryopreserved their sperms around [year] or [year].

(2) In [year], the appellee received a ruling of a change in the recognition of the gender status under Article 3, paragraph (1) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (hereinafter referred to as the "Act on Special Cases"), and changed their gender which is to serve as the basis for application of laws and regulations (hereinafter referred to as the "legal gender ") from male to female.

(3) The mother of the appellant became pregnant by assisted reproductive technology using the abovementioned frozen sperm with the consent of the appellee, and gave birth to the appellant on [date]. The appellant is a child out of wedlock of the appellant's mother.

(4) In [month and year], the appellee filed an application with A to register acknowledgment of paternity for the appellant as an unborn child, but the application was not accepted on the grounds of the appellee's legal gender being female.

3. The court of prior instance determined as follows in summary and dismissed the appellant's claim.

A child born out of wedlock acquires the legal status with which the child can exercise the right to seek acknowledgment of paternity against a person who caused a biological woman to conceive the child using the person's sperm only if the person's legal gender is male at the time of the birth of the child. Therefore, if the person's legal gender had been changed to female by the time of the birth of the child, the child cannot seek acknowledgment of paternity from the person. Since the appellee's legal gender had been changed to female by the time of the birth of the appellant, the appellant cannot seek acknowledgment of paternity from the appellee.

4. However, the determination by the court of prior instance mentioned above cannot be affirmed, for the following reasons.

There are no provisions in the Civil Code or other laws and regulations regarding the legal gender of the father for whom a legal father-child relationship is to be formed with the child based on an action for filiation. Until the Act on Special Cases came into effect in 2004, there had been no doubt that the gender of a person who can be a legal father is male without exception. However, as assisted reproductive technology advanced and the Act on Special Cases came into effect as a law to allow a change in the recognition of the gender status, there can be a situation where a person whose legal gender is female causes a biological woman to conceive a child using the person's sperm and has a father-child relationship by blood with the child. The issue raised in this case is whether the appellant can seek acknowledgment of paternity from the appellee, who has a father-child relationship by blood with the appellant but whose legal gender is female. The Court examinees this issue below.

The legal system concerning a natural parent-child relationship under the Civil Code has its basis on a parent-child relationship by blood. An action for filiation against a father is filed to form a legal father-child relationship based on a court judgment, on condition of the existence of a father-child relationship by blood. A father-child relationship by blood arises when a biological man causes a biological woman to conceive a child with his sperm, regardless of whether the man's legal gender is male or female.

A natural parent-child relationship is deeply related to the welfare of a child, and it is considered that an action for filiation against a father is filed to form a legal father-child relationship compulsorily in order to ensure the welfare and interest of the child. If there are cases where a child is precluded from seeking acknowledgment of paternity from a person who has a father-child relationship by blood with them on the grounds that the person's legal gender is female, that person, despite the existence of the father-child relationship by blood, cannot have the parental authority with respect to the child unless by adoption, which would cause a situation where the child cannot acquire the legal status with which the child can be taken care of, raised or supported by that person or become an heir of that person. Such a situation is obviously contrary to the welfare and interest of the child.

Article 3, paragraph (1), item (iii) of the Act on Special Cases provides that the person in question "currently has no child who is a minor" as a requirement for making a ruling of a change in the recognition of the gender status. This phrase was introduced by Act No. 70 of 2008 by amending the phrase "currently has no child" provided in the Act on Special Cases at the time of its enactment, and the phrase in this item after the amendment can be understood as being based primarily on the consideration for the welfare of a minor child. As mentioned above, if it is considered that a minor child would be precluded from seeking acknowledgment of paternity from a person who has a father-child relationship by blood with them on the grounds that the person's legal gender is female, this could rather lead to a consequence contrary to the welfare of the child that cannot be overlooked. In that case, it cannot be said that the existence of the same item can be the basis for considering in a manner as mentioned above, but rather, it can be said that in light of what is stipulated therein, the same item makes it clear that if a child is an adult, the legal father of the child is not limited to a person whose legal gender is male. In the Civil Code or other laws and regulations, there are no other provisions that can be the basis for considering that the formation of a legal father-child relationship based on an action for filiation should be prevented on the grounds that the biological father's legal gender is female.

For the reasons stated above, it is appropriate to consider that a child born out of wedlock can seek acknowledgment of paternity from a person who caused a biological woman to conceive the child using the person's sperm, regardless of the person's legal gender.

According to the facts mentioned above, it should be said that the appellant can seek acknowledgment of paternity from the appellee.

5. The determination by the court of prior instance that is contrary to the above contains a violation of law or regulation that has clearly influenced the judgment. The appeal counsel's arguments are well-grounded, and the judgment in prior instance should inevitably be quashed with respect to its part concerning the appellant. According to the explanation given above, the appellant's claim is well-grounded. Therefore, the judgment in first instance should be quashed with respect to that quashed part and the appellant's claim should be upheld.

Therefore, the Court unanimously decides as set forth in the main text of the judgment. There are concurring opinions by Justice MIURA Mamoru and Justice OJIMA Akira.

The concurring opinion by Justice MIURA Mamoru is as follows.

I would like to give some supplementary comments regarding the view that a child born out of wedlock can seek acknowledgment of paternity from a person who caused a biological woman to conceive the child using the person's sperm, regardless of the person's legal gender, by focusing on its relation with Article 3, paragraph (1), item (iv) of the Act on Special Cases.

Article 3, paragraph (1), item (iv) of the Act on Special Cases provides that the person in question "has no reproductive glands or whose reproductive glands have permanently lost function" as a requirement for making a ruling of a change in the recognition of the gender status (hereinafter referred to as a "ruling of a change in recognition of gender status"). This provision was judged to be unconstitutional and invalid in 2020 (Ku) 993, the decision of the Grand Bench of the Supreme Court of October 25, 2023, Minshu Vol. 77, No. 7, at 1792. It is understood that the provision is originally based on considerations such as the possibility of causing confusion in society due to the occurrence of problems related to parent-child relationships should a child be born through the reproductive function of the previous gender of a person who had received a ruling of a change in recognition of gender status.

However, it is obvious that the same item does not deny the possibility that a child would be born as a result of using assisted reproductive technology after receiving a ruling of a change in recognition of gender status, including the use of sperm that was cryopreserved before receiving the ruling of a change in recognition of gender status, and regardless of the abovementioned Grand Bench decision, the existence of the same item cannot be considered to be the basis for preventing the formation of a legal father-child relationship based on an action for filiation on the grounds that the biological father's legal gender is female.

In this respect, the possibility of the birth of such a child as mentioned above was recognized among the lawmakers at the time of the enactment of the Act on Special Cases in 2003. It seems that the lawmakers considered that matters such as manners of using cryopreserved sperm, etc. should be determined in the process of developing a law relating to assisted reproductive technology, and that a parent-child relationship regarding such a child born before the development of that law would be determined according to the interpretation of the Civil Code.

Along with the advancement of assisted reproductive technology and the expansion of its use, some people wish to raise a child with their partners by appropriately using assisted reproductive technology even in the case where there is no possibility of having a child through natural reproduction. On the other hand, since the legal system relating to a natural parent-child relationship could affect the basis of the order of personal status law and there are various arguments regarding matters such as bioethics, the interest of children, and the nature of a family, it may inevitably take some time to develop such a law. However, more than 20 years have passed since the need to develop the relevant law was first recognized, and reality has already moved ahead of the existing law. It is the responsibility of the court to solve an individual case by making a legal determination based on an appropriate interpretation of the existing law, while taking into account the facts of the relevant case.

The concurring opinion by Justice OJIMA Akira is as follows.

I am in agreement with the court opinion, but I would like to give some additional comments on my view.

1. Before the Act on Special Cases came into effect, each person's legal gender had matched their biological gender, and it was natural that there were no provisions in law or regulation regarding the gender of a person from whom acknowledgment of paternity is sought. However, this situation has changed since the Act on Special Cases came into effect.

Even at the time of the enactment of the Act on Special Cases, there were possibilities that: [i] a person who has made a change in the recognition of the gender status from male to female would acknowledge paternity of a child born out of wedlock before the Act on Special Cases came into effect, or such a child would seek acknowledgment of paternity from that person; and [ii] acknowledgment regarding a child would become a problem in the case where a person who cryopreserved their sperm before making a change in the recognition of the gender status would have a child by assisted reproductive technology using their sperm (there is no legal basis for prohibiting the use of this technology), as is disputed in this case. It seems that people involved in drafting the Act on Special Cases recognized that such situations could arise as very exceptional cases. However, they took no measures, such as developing a law concerning the relation with the welfare of a child born in such situation, even after examining in detail the impact of such possibilities on personal status law such as the Civil Code.

Furthermore, since the provision of Article 3, paragraph (1), item (iv) of the Act on Special Cases (hereinafter referred to as the "Item (iv) Provision") was judged to be unconstitutional and invalid in 2020 (Ku) 993, the decision of the Grand Bench of the Supreme Court of October 25, 2023, Minshu Vol. 77, No. 7, at 1792, there is a possibility, although it may be a very rare case, that a person who has made a change in the recognition of the gender status from male to female would have a child as a biological father using their remaining reproductive ability.

It is now necessary to address such circumstances through the legal system concerning personal status. It can be said that the court is required to interpret the provisions concerning acknowledgment of paternity by comprehensively taking into consideration the relation between the decision to uphold an action for filiation filed by such a child as mentioned above and the legal system relating to a natural parent-child relationship under the Civil Code, as well as the impact that the decision to uphold such action could have on the welfare and familial relationship of the child as well as on society.

2. First, the legal system relating to a natural parent-child relationship under the Civil Code is based on a parent-child relationship by blood. This is indicated in the precedents of this court (see 2004 (Ju) 1748, the judgment of the Second Petty Bench of the Supreme Court of September 4, 2006, Minshu Vol. 60, No. 7, at 2563, and 2006 (Kyo) 47, the decision of the Second Petty Bench of the Supreme Court of March 23, 2007, Minshu Vol. 61, No. 2, at 619), and the court opinion in this judgment does not run counter to the principle of the basic legal system under the Civil Code. In addition, it can be said that this holding would not cause any problem in relation to the provisions of the Civil Code, nor would it conflict with the provisions of other laws and regulations.

Next, it does not seem that there are any reports or the like that specifically show that there will be particular problems with a child's growth and development if the court upholds an action for filiation filed by a child like the appellant, and it is difficult to say that there will be an adverse effect on the welfare of a child if such action for filiation is upheld. Rather, it is obviously contrary to the welfare of a child to deprive the child, without exception, of the possibility of being subject to parental authority or custody by the father by blood who has made a change in the recognition of the legal gender from male to female, the possibility of receiving support from the father or father's relatives, and the possibility of inhering the property of the father or father's relatives (in these respects, the circumstances in this case considerably differ from the circumstances in the case of the judgment of the Second Petty Bench of the Supreme Court in 2006 in which a parent-child relationship was disputed with regard to a child who was conceived using the cryopreserved sperm of the deceased person). The welfare of a child discussed here means that a child is granted the rights and status that are institutionally approved. How to ensure the welfare of a child specifically differs among individual families depending on the situation in which the child is actually in, and this task should be carried out through the efforts of the child's family and also by the family court, welfare and educational organizations, and other related parties, based on the premise that a parent-child relationship is formed.

From this viewpoint, it is natural to give priority to ensuring the welfare of a child when examining whether or not to permit the child to seek acknowledgment of paternity from a person who has made a change in the recognition of the gender status, and it is also natural to conclude, as stated in the court opinion, that in the case where the father by blood who is capable of ensuring the welfare of such a child as mentioned above currently exists (where the father became the father on their own will), an action for filiation filed by the child should be upheld so that a parent-child relationship can be formed between the child and the father by blood.

3. The provision of Article 3, paragraph (1), item (iii) of the Act on Special Cases (hereinafter referred to as the "Item (iii) Provision") provides that the person in question currently has no child who is a minor as a requirement for making a ruling of a change in the recognition of the gender status. This requirement is applicable only when making such a ruling, and it cannot be construed that the Item (iii) Provision itself or the intention and purpose of the Item (iii) Provision directly restricts the formation of a parent-child relationship with a minor child after said ruling becomes final and binding. For example, in the case where a person who had changed their legal gender from female to male married a woman, and then the wife conceived and gave birth to a child using assisted reproductive technology, the child is presumed to be a child born in wedlock (see 2013 (Kyo) 5, the decision of the Third Petty Bench of the Supreme Court of December 10, 2013, Minshu Vol. 67, No. 9, at 1847). In such case, a person who has received a ruling of a change in the recognition of the gender status comes to have a biological child who is a minor after receiving that ruling. Also, a person who has received such ruling is not precluded from adopting a minor child.

In this respect, it is understood that the Item (iii) Provision before amendment by Act No. 70 of 2008 (hereinafter referred to as the "Amendment in 2008"), which required that the person in question "currently has no child," along with the Item (iv) Provision, which requires that the person in question "has no reproductive glands or whose reproductive glands have permanently lost function," were intended to prevent the occurrence of inconsistency between the attributes of a legal father and mother and the legal genders of a male and female, which would result from the existence of a "legal father whose legal gender is female" or "legal mother whose legal gender is male," because such consistency is likely to cause confusion to family order. However, the Act on Special Cases does not prohibit a person who has received a ruling of a change in the recognition of the gender status from having a child by assisted reproductive technology after the ruling becomes final and binding, nor does it preclude a child who was born before such ruling from filing an action for filiation against the person who has made a change in the recognition of the gender status from male to female. It can be said that whether a legal parent-child relationship can be formed in such cases is left as an issue to be solved through the interpretation of the Civil Code.

There may be a room to consider that the Item (iii) Provision after the Amendment in 2008, in combination with the Item (iv) Provision, is intended to prevent the occurrence of the abovementioned inconsistency with regard to a minor child. However, given that there seems to have been no such situation where confusion occurred in society in terms of family order despite the fact that the Amendment in 2008 allowed such inconsistency to occur with regard to a child who is an adult, it may be difficult to say that any specific situation is assumed as the confusion in terms of family order, which is likely to occur in the case where a "minor child's legal father whose legal gender is female" comes to exist as a result of upholding an action for filiation filed by a minor child against a person who has made a change in the recognition of the legal gender from male to female. Also taking into account the fact that, as stated in the court opinion, the Item (iii) Provision after the Amendment in 2008 is mainly intended to give consideration to the welfare of a minor child, even if the Item (iii) Provision after the Amendment in 2008, in combination with the Item (iv) Provision, is still intended to prevent the occurrence of the abovementioned inconsistency with regard to a minor child, it is not considered that such intention must be secured even at the expense of the welfare of a child like the appellant.

The court of prior instance examined whether the child has the right to seek acknowledgment of paternity on the basis of the sequential order as to whether the child was born before or after the ruling of a change in the recognition of the gender status became final and binding, thereby upholding an action for filiation filed against a person whose legal gender is female only in limited cases. However, it seems difficult to say that the court of prior instance set a rational standard because it drew a different conclusion based on the abovementioned sequential order, which can be described as an incidental matter.

4. It is a publicly known fact that in the process of considering an appropriate manner of developing a law relating to assisted reproductive technology, there have been discussions on how to give consideration to the intention of a sperm doner and questions have arisen as to how to deal with a father-child relationship in the case where sperm is used against the intention of the sperm donor. In this case, the appellee and the appellant's mother used assisted reproductive technology for the purpose of having a child, and the judgment on this case is not intended to make a certain conclusion regarding these questions.

Justice OJIMA Akira

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi