Thinking about new forms of the family: from the perspective of the laws governing parent-child relationships in the Netherlands
The formation of families through assisted reproductive technology
Today it is already possible to receive treatment with assisted reproductive technology in Japan, and children born through this method actually exist. Putting aside the legal issues surrounding the pros and cons of regulation, if a legal framework designed to secure the legal position of children who have been or will be born through the use of this technology – the legal relationship between such children and their parents and the right of such children to know their own origins – is put in place, it should be possible to protect both the wishes of people who want to have their own children using assisted reproductive technology and the welfare of these children themselves. Furthermore, if the right kind of childrearing environment, including elements such as the legal position of the child discussed above, can be guaranteed, then the ability to create families using assisted reproduction technology should presumably be secured not only for different-sex but also same-sex couples.
Acceptance of same-sex couples as parents in the Netherlands
With the introduction of registered partnerships in 1998 and same-sex marriage in 2001, adoption (both domestic and foreign) by same-sex couples has come to be accepted in the Netherlands. Regarding assisted reproductive technology, artificial insemination by donor (AID) and in-vitro fertilization through egg donation are both accepted, and users include not only different-sex couples but also same-sex couples and single women.
When one partner in a female couple gives birth using AID, the child is adopted by the other partner who becomes its mother; in other words, she is recognized as a mother who did not give birth. With the revision of the civil law in 2014, so-called “Duomoederschap van rechtswege [automatic parentage for co-mothers]”was created; in cases in which a female couple agree to AID, the woman who is married or a registered partner of the woman who gives birth automatically becomes the child’s mother (second mother) without having to go through the process of adoption. Through “co-motherhood” there was a significant move away from the idea of parent-child relationships being dependent only on genetic factors and toward direct acceptance of parent-child relationships based on the wishes of the person in question to become a parent. When it comes to male couples, since there is no method for having a child apart from surrogate pregnancy and childbirth, a male couple becoming legal parents would require the elimination of the legal relationship between a child and the woman who gives birth to them, and for this reason co-fatherhood was not introduced in the 2014 reform.
In December of 2016 the Dutch government established a national committee to reevaluate parenthood, and released a report entitled “Children and parents in the 21st century.” The purpose of this report was to make parent-child relationships based on genetic elements and parent-child relationships based on the wishes of the parties involved equal, and “juridisch meerouderschap [legal multi-parenthood]” was proposed. Multi-parenthood refers to a situation in which a male couple (one of whom is the sperm donor) and a woman (the surrogate mother) or a male couple (one of whom is the sperm donor) and a female couple (one of whom is the surrogate mother) become the legal parents of a child and raise them together. Of course, to protect the interests of the child the procedure for engaging in multi-parenthood is extremely strict. In order for multi-parenthood to be accepted, ① before insemination, all parties must give their consent and a written agreement – stipulating such things as childrearing methods, childrearing costs, the child’s surname, and changes to the agreement after the child is grown – must be drawn up by a lawyer, ② this agreement must be submitted to a court, and ③ the court must confirm whether the contents of the agreement are in accordance with the interests of the child. After this has been done, the carrying out of insemination is accepted, and when the child is born the names of all parties to the agreement are recorded on the birth certificate. Responses to this report from various spheres are expected to be released in the first half of 2019. (According to field research conducted in the Netherlands in September of 2018).
Local governments that have taken action, and issues to be addressed
Since Tokyo’s Shibuya and Setagaya wards introduced same-sex couple proof of partnership systems in 2015, the number of local governments that have introduced partnership systems has increased, and these kinds of initiatives are gradually spreading throughout the country. This has sparked a debate on issues concerning the legal treatment of same-sex couples such as the acceptance of legal same-sex marriage or a legal system that treats partnerships the same as the legal marriages of different-sex couples, and has given the general public an opportunity to think about “gender diversity” and “family diversity.” In Japan this debate has normally focused only on the pros and cons of legal acknowledgement of same-sex couples on the basis of the biological fact that these couples cannot have children. When we consider that it has become possible for female couples to have a child using AID and male couples to do so using a surrogate mother, however, it is clear that we must consider the pros and cons not only of the acknowledgment of same-sex marriage as a relationship between the two people involved but also the pros and cons of the formation of parent-child relationships as legal issues that need to be addressed.
- Kim Sungeun,(2012), Reviewing Circumstances and Strategies for Resolving Issues Relating to Surrogacy －A Comparison of Japan and Korea, Ritsumeikan Law No.341,357-453p
- Yasuhiko Watanabe, (2017), “Ko to haha no jyosei paatonaa to no boshikankei no seiritsu – Oranda ni okeru ko to dyuomazaa no oyakokankei – [The formation of mother-child relationships between children and their mother’s female partner – parent-child relationships between children and dual mothers in the Netherlands],” Sandaihōgaku Vol. 50 No. 3, 211-234 p.