Statement on the Outline of the Amendment to the Civil Code (Law of Parent and Child) and Other Related Acts

• Japanese

 

On February 14, 2022, the Legislative Council of the Ministry of Justice adopted the Outline of the Amendment to the Civil Code (Law of Parent and Child) and Other Related Acts (the “Outline”).

The Japan Federation of Bar Associations (the “JFBA”) welcomes that the Outline provides for, albeit rather too late, the deletion of the article prohibiting remarriage of women for a certain time period (Article 733 of the current Civil Code) and the article providing for the disciplinary authority over one’s child (Article 822 of the current Civil Code). The JFBA has pursued the deletion of these articles for many years. However, removing these provisions is not sufficient to prevent child abuse or to address the issue of unregistered individuals on official family registers. Additionally, in terms of reproductive medicine, it is required to facilitate the relevant legislation.

First, the JFBA appreciates the deletion of the article prescribing the period prohibiting women from remarrying, since the Committee on the Elimination of Discrimination against Women of the United Nations and other organizations had also advised to repeal the article. In terms of the system to presume the legitimacy of children, the JFBA expects that the following amendments, which the Outline has set out for women who gave birth to a child within 300 days of the dissolution of their marriage, will help resolve the so-called “300-day problem” (of presumption of legitimacy): assuming the child to be a child of his or her mother’s husband in her later marriage if the child was born after his or her mother’s subsequent marriage; and expanding the scope of persons who are eligible for the right to rebut the presumption of legitimacy to mothers and children, and extending the period to exercise the right to rebut to three years. In addition, the Outline has authorized children who have reached a certain maturity level to exercise, under certain conditions, the right to rebut the presumption of legitimacy themselves without a statutory agent. Although the conditions for exercising this right are rather stringent, the JFBA commends this amendment, since it will provide a pathway to terminate a father-child relationship existing merely on the official family register without a real-life relationship, and will create certain effects to eradicate the challenges suffered by people who are left unregistered.

In the meantime, however, given that family forms are becoming increasingly diverse nowadays, the effects of the amendments highlighted above are questionable because the situation cannot be redressed unless the mother is legally married after the dissolution of her former marriage. Above all, the amendments are inadequate to address issues involving unregistered people because the issues involving children cannot be remedied if their parents are not married legally due to various grounds. Additionally, although the Civil Code (Law of Parent and Child) Subcommittee of the Legislative Council of the Ministry of Justice deliberated some proposals related specifically to children who were conceived clearly after marital separation and similar circumstances, such as a proposal to omit a hearing of the husband in the procedure of conciliation of domestic relations prior to an action of affiliation and a proposal to enable the submission of a Notification of Birth on which the child’s father is not the mother’s husband on condition that certain materials are attached, these proposals were not adopted. However, these proposals could effectively help resolve the issue of the unregistered persons and hence, they should be left on the agenda for further discussion in the future. Moreover, it is regrettable that the use of the term “legitimacy in wedlock,” was not revised because it gives the impression of discrimination.

The deletion of the article providing for the disciplinary authority over one’s child was achieved in response to the JFBA’s strong call to delete it, since the disciplinary authority has been used conveniently as a rationale to justify child abuse in an environment where recognized cases of child abuse are on the rise with many tragic cases being reported one after another. In addition to the deletion of the article, the Outline has proposed that prohibiting corporal punishment, respecting the child’s personality, and prohibiting acts that are detrimental to the healthy mental and physical development of children be laid down in the Civil Code, which the JFBA considers commendable. However, in terms of prohibiting “acts that are detrimental to the healthy mental and physical development of children”, there still are issues related to applying such statute in ensuring that the acts prohibited will not be narrowly interpreted.

In the meantime, although the JFBA commends the Subcommittee for deliberating to a certain extent about the issues related to rebutting the presumption of legitimacy in cases involving the employment of reproductive technology, the Outline only proposes an amendment related to the eligibility to rebut the presumption of legitimacy in the context of Article 10 of the Act on Special Measures of the Civil Code concerning the Use, etc. of Assisted Reproductive Technology and the Parentage of a Child Born through Assisted Reproductive Technology. It is imperative to facilitate the institution and refinement of a public management system to oversee practicing laboratories and the related information—which constitutes the basis of the appropriate use of assisted reproductive technology—as well as the restriction on acts defining the scope of authorized techniques and procedures. With such a regime being in place, the subject matters examined by the Subcommittee at this time should be put on the table again for renewed discussion.

The JFBA will continue to closely monitor the legislative process in line with the Outline, and strongly urges that the points left unresolved in particular be deliberated sufficiently in the Diet and that further efforts be made to prevent child abuse, resolve the issue of the unregistered, and establish laws related to reproductive medicine.