Cases and legislations concerning artificial insemination: comparative study of Japanese law.

Abstract

That a woman gets pregnant by permeation of the soul of one of her ancestors int? her womb while she is bathing in the ocean is the mysticism of birth believed in "primitive" societies. The advancement of science stripped the veil from mysticism and established the natural law of birth. Once this natural law had been proved, it became possible to put knowledge of the law to practical use to control, prevent or supply, the birth of a child. But artificial insemination, as a technique for inducing pregnancy in case of the husband's being impotent or sterile,1 has only recently been used.2 There are two kinds of artificial insemination : homologous insemination (commonly referred to as AIH) and heterologous insemination (AID). The latter causes many more legal difficulties than the former, particularly with regard to the questions as to whether it constitutes adultery as grounds for divorce and whether the resulting child is illegitimate. The number of children born of artiflcial insemination who are alive now is estimated at over 350,000 in the entire world (among them 250,000 in the United States).3 It is necessary to establish a legal judgment regarding artificial insemination for the sake of wives attempting this procedure and their children. Moreover, artificial~insemination is a technique which cannot be dealt with by existing legal concepts and so it raises several very interesting theoretical questions. The fact that the natural law has been proved and the judgment as to whether we human beings should put this knowledge to practical use are quite different. There is so much literaure relating to whether the practice of insemination should be approved morally, religiously, and legally that the writer has not been able to read it all.4 However, the study of approximately ten judicial cases and two statutes has given this writer an indication of the general tendency of legal decisions on artificial insemination. The present paper concerns first the description of those cases, secondly [the analysis of cases and statutes and finally a comparison of the Anglo-American law with Japanese law.