Resolution Calling to Fully Redress the Victims of Eugenic Surgeries Performed under the Now-defunct Eugenic Protection Act
The now-defunct Eugenic Protection Act (the “Act”) was enacted in 1948 under the current Constitution. Under the Act, eugenic surgeries (sterilization operations performed under an Order) and induced abortions (collectively referred to as “eugenic surgeries”) were performed on as many as approximately 84,000 people with genetic disorders, Hansen’s disease, mental disorders, and other disorders (collectively referred to as “people with disabilities”) for 48 years until the Act was amended to the Maternal Health Act in 1996. They were damaged by the eugenic surgeries.
The Act, although enacted under the current Constitution, was aimed to “prevent the birth of descendants who are inferior from a eugenic point of view” (Article 1), denying existence to people with disabilities. The Act’s extremely inhumane and discriminatory contents, which violated of Articles 13 and 14, paragraph (1) of the Constitution, continued to violate human rights for many years.
In addition, the fact that the Act spread the idea of eugenics as a national policy and actively promoted eugenic surgeries while causing substantial damage became a basis rooting the idea of eugenics in society and is still causing discrimination against people with disabilities which rigidly exists today.
The Japan Federation of Bar Associations (the “JFBA”) released its first opinion focusing on the issues concerning the Act in February 2017 and the second one in December 2018 calling for measures such as promptly providing sufficient compensation to the victims of eugenic surgeries.
However, the “Act on Lump-sum Payments, etc. to Persons Who Underwent Eugenic Surgery or Other Operations in Accordance with the Now-defunct Eugenic Protection Act” (the “Act on Lump-sum Payments”), which was enacted on April 24, 2019, cannot be deemed as sufficient as it does not include the declaration of the unconstitutionality of the Act or the provision to notify each victim of the lump-sum payment, and the lump-sum payment does not apply to those who underwent induced abortions.
In response to the enactment of the Act on Lump-sum Payments, the JFBA released a statement on the day of enactment calling for conducting a review of the Act on Lump-sum Payments to further enhance redress for the victims, but the review has not been carried out to this day. In addition, partly due to the lack of government efforts to notify each victim of the lump-sum payment, only 1,006 cases have been identified as eligible under the Act on Lump-sum Payments (as of the end of July 2022), marking poor progress in providing the lump-sum payments to victims.
Since 2018, lawsuits against the government have been filed across the country seeking compensation for eugenic surgeries performed on victims, but the districts courts in Sendai, Tokyo, Osaka, Sapporo, and Kobe respectively, rejected the plaintiffs’ claims on grounds that the statute of limitations for claiming the compensation set forth in the second sentence of the Article 724 of the Civil Code prior to the amendment, had already expired at the time the lawsuit was filed.
In 2022, the Osaka High Court entered a judgment on February 22nd in an appeal from the judgment against the plaintiff rendered by the district court, and Tokyo High Court did the same on March 11th. Both of the high court decisions ordered the government to pay the appellant damages while limiting the application of the statute of limitations, ruling that it is materially contrary to the principles of justice and fairness to allow the application of the statute of limitations to victims who have been deemed “inferior” under the Act and subjected to eugenic surgery, having suffered serious human rights violations and serious damage.
The decisions by the two high courts finally opened the door to judicial redress which was closed due to the statute of limitations. However, the government has made a petition for the acceptance of the final appeal against the two high court decisions, while many bar associations including the JFBA were calling for making decisions final immediately by giving up on appealing and conducting a review of the Act on Lump-sum Payments.
The Act was an unconstitutional law in violation of Articles 13 and 14, paragraph (1) of the Constitution, and the serious violation of the human rights of many people with disabilities committed by the government as a national policy under the Act is a self-evident fact. However, measures for the victims such as providing sufficient compensation have still not been fully implemented although 26 years have passed since the amendment of the Act and 5 and a half years have passed since the JFBA released the aforementioned opinion in February 2017.
Furthermore, in order to fully redress the victims, it is necessary to eradicate discrimination stemming from eugenic ideas which took root in society under the Act and restore the violated dignity of individuals, in addition to implementing measures such as providing sufficient compensation.
Taking into account the noticeable aging of victims and that many victims have died with regrets while waiting for redress, achieving full redress for victims as soon as possible is an urgent task.
Reflecting this, the JFBA calls on the government to conduct a fundamental review of the Act on Lump-sum Payments and implement various measures to eradicate discrimination stemming from eugenic ideas as follows:
- Taking into consideration that the two high court decisions awarded significantly more compensation for mental suffering than the amount of the lump-sum payments to victims based on the Act on Lump-sum Payments and also awarded compensation for mental suffering to the victims’ spouses who did not undergo eugenic surgeries, a fundamental review on the Act on Lump-sum Payments shall be carried out including the following:
- (1) The admission of the unconstitutionality of the Act shall be expressed in the Act on Lump-sum Payments, and the government’s responsibility owed to victims for compensation shall be made clear.
- (2) The scope of compensation shall be expanded to include those who underwent induced abortion and the spouses of those who underwent eugenic surgeries.
- (3) All victims shall receive compensation sufficient to cover their damage.
- (4) Individual notifications to each victim known to the government shall be carried out in a manner that gives careful consideration to their privacy
- (5) Taking into consideration that many victims have difficulty accessing information due to factors such as the characteristics of their disabilities and the environment, a sufficient amount of time shall be given so that all victims are able to surely access information on the compensation and make an application
- Policies and measures including the following shall be implemented to eradicate discrimination stemming from eugenic ideas under the Act and realize a society where people respect each other as equally irreplaceable individuals.
- (1) The Diet’s ongoing examination of the damages inflicted shall be expedited and the results of the examination shall be promptly released. A third-party body shall be established to conduct a review to pursue the truth and measures shall be implemented to prevent the recurrence of what happened.
- (2) Efforts shall be made to continuously work on educating about and raising awareness of human rights to eliminate discrimination and prejudice by means such as recommending incorporating into curricula of schools and social education the serious violation of human rights caused by the Act which was an unconstitutional law and the commitment to preventing the recurrence of similar damage to the damage caused by the Act.
- (3) Proactive measures such as those to enhance livelihood support including child-rearing support shall be implemented in order to prevent people with disabilities, etc. from being forced to give up on marriage or childbirth due to unjust influence from those around them, and to allow everyone to freely make decisions as to their own way of life.
The violation of human rights caused by the Act was a serious human rights violation on the largest scale since the end of WWII and caused damage to many people with disabilities. The JFBA, as an association of legal professionals, sincerely regrets its insufficient efforts on this issue before releasing the aforementioned opinion paper in February 2017, despite the seriousness of the issue.
The JFBA is determined to continue to make sincere efforts until a full restoration for the victims of the Act is achieved and all victims receive such restoration and to use its best efforts to restore human rights that are being violated out of sight in society.
We resolve as above.
September 30, 2022
Japan Federation of Bar Associations