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Top>Opinion>Unwanted Pregnancies and the Legal System


Hirohito Suzuki

Hirohito Suzuki [profile]

Unwanted Pregnancies and the Legal System:
What the New German Law on Interests of the Mother and Interests of the Child Reveals

Hirohito Suzuki
Professor, Faculty of Law, Chuo University
Areas of specialization: Family law, Child Welfare Act

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What system does Japan have in place for dealing with the situation where, for whatever reason, a woman has an unintended pregnancy, or is unable to give birth after falling pregnant?

Measures under the Maternal Protection Act

The Maternal Protection Act prescribes that an abortion may be carried out by a physician designated by the Act with the consent of the pregnant women and her spouse when the pregnancy is the result of an act of sexual intercourse with a person other than the spouse in a situation where the woman was unable to resist due to violence or intimidation (Article 14 Item (b)). This provision puts forward grounds that are somewhat different from the purpose of the Act “to protect the life or health of the mother” (Article 1).

If measures under the Maternal Protection Act are prenatal measures, then what institutional postnatal measures are available for unwanted pregnancies? To come right to the point, there is no system that focuses solely on unwanted births. Measures relating to an unwanted child or that child’s mother are provided for within the framework of the Child Welfare Act and the Maternal and Child Health Act, or in part under the adoption provisions of the Civil Code.

Numerous deaths under one day old

The annual report on cases of abuse resulting in death released by the Ministry of Health, Labour and Welfare shows that the greatest number of abuse-related deaths were infants less than 24 hours old. The offenders are the biological mothers, and seventy percent of these cases are unwanted pregnancies. Problems that have been highlighted in regard to this are that the mothers have not been issued with a maternal and child health handbook, and have not undergone prenatal health checks. One distinctive characteristic of abuse-related deaths of infants under one day old is that there are no instances where the birth was delivered in a health-care facility.

Babyklappe (baby-drop)

Japan is by no means the only country where there are women who for some reason cannot reveal the fact that they have given birth, and also where babies have been abandoned and died as a result. In an effort to prevent this, in 1999 private organizations in Germany introduced arrangements known as Babyklappe, or “baby-drop,” in which the mother can safely leave the unwanted baby with a facility that can provide the necessary care. The fact that the Babyklappe is in a legal gray zone is similar to the legal status within Japan of the Konotori no yurikago (Stork’s cradle) set up by a hospital in Kumamoto City and modeled on the German Babyklappe system.

Anonymous Birth Law

From May 1, 2014 a new law will come into force in Germany. This is the “Expectant Mothers Assistance Law — Anonymous Birth Law,” and the grounds for this legislation contain perspectives that are food for thought regarding unwanted pregnancies. The incentive for this law are the 20 to 35 babies who are abandoned or killed immediately after birth in Germany every year. Accepting the anonymous deposit of a baby at a Babyklappe also does nothing to reduce the danger to both the mother and baby of giving birth without receiving proper medical assistance. Even though it is essential to ensure that both the life of the unborn child is protected and medical care is provided for the mother and baby during birth, the reason this has not been realized to date is thought to be that in Germany there is no system whereby the interests of the mother who abandons her baby and the interests of that baby are valued equally and rightfully. The key point here is the accurate perception that in this case the legal interests of the mother who gives birth under dangerous conditions then considers abandoning her baby are incompatible with the legal interests of ensuring the continuing welfare of the baby from before birth through to after the baby is born. But giving birth under assured medical care is vital for both the mother and the baby.

It was against this backdrop that the German Federal Ministry of Family Affairs, Senior Citizens, Women and Youth introduced the anonymous birth bill. The fundamental stance of this law is to ensure that pregnant women who feel apprehensive about revealing their identity can give birth under medical management in a hospital, and to provide them with the assistance that would enable them to make a choice on having a future life with their child. To this end, a reliable and ongoing support system that will protect the benefit of anonymity of the pregnant woman, will encourage women who are particularly burdened to seek assistance in the first place, is readily accessible to all, and is reachable at all times is necessary. What should be focused on here is that the law assures the anonymity of the birth mother for a sufficient period of time so that she can accept assistance and look for possible solutions to the problems she is facing. At the same time, the law also seeks to ensure that there are official procedures established to enable children to find out their birth origins. Naturally, adoption and parental rights laws have been revised as required.

Interests of the mother and interests of the child

What is critical for future debate on this issue in Japan is to determine exactly what the interests of the mother and of the child are, where they are in conflict, and where they are in accord. Consideration must also be given to the interests of the father, and also those of the family that will raise the child. Lessons we can take from the German law are that ensuring the mother’s anonymity for a set period is at odds with the child’s right to know his or her birth origins, and reconciling this conflict will take time; that there is a need to prescribe what is to be done when that conflict has not been resolved after a reasonable period of time (when the mother’s demand for anonymity still remains after an extended period); and that there is a need to ensure a safe birth under the medical care necessary for both mother and baby.

Explanations of the bill have stated that if this course is successful, there should be no further need for Babyklappe.

Hirohito Suzuki
Professor, Faculty of Law, Chuo University
Areas of specialization: Family law, Child Welfare Act
Graduated from the Department of Law, Faculty of Law, Chuo University. Withdrew from the Doctoral Course of the Graduate School of Law, Chuo University after completing the course requirements. Appointed to current post in 2002 after serving as Assistant Professor at Ibaraki University. Also served as Professor at Chuo University Law School and as Visiting Professor at the University of Münster. Has been serving as an overseas research scholar at the Department of Civil Law, Faculty of Law, University of Vienna since April 2013. Research theme is comparative law with a focus on parent-child welfare law in Japan, Germany and Austria. Proposes the establishment of systems in the fields of family law, and especially parent-child law as comprehensive systems for collaboration with child welfare systems. Representative scholarly works include Child Welfare and Joint Custody-Research on Comparative Laws on Parental Authority and Custody Associated with Separation and Divorce [Kodomo No Fukushi To Kyoudou Shinken-Bekkyo / Rikon Ni Tomonau Shinken / Kango Housei No Hikakuhou Kenkyuu] (coauthored, Nihon Kajo Shuppan).