BY AKIRA ISHIZUKA
Reader G.H. from Peru writes: I’m doing research
on paternity systems around the world, and I was wondering if you could help.
“This may not be a big issue in Japan but it is
in the Occidental world: fathers who don’t want to recognize their children. So
a paternity demand starts and then a DNA test is ordered by a judge. In some
countries it has become mandatory to take the test, and if the man refuses, he
is declared father of the child. But some countries are against this being
mandatory. I would like to know how it works in Japan, please.”
This inquiry begs two questions. The first is:
Is a DNA test mandatory in order to prove the biological parent-child
relationship in paternity cases in Japan? The other question is: Is it
mandatory for a parent or child to have a DNA test, even against their will, in
such cases?
The quick answer to both questions is “no,” but
before I explain the answers in detail, let me give you a brief explanation of
the recognition process, since in several places — like the Philippines, China,
New Zealand and Ontario, Canada — they do not have such a system.
The recognition process is a procedure to
establish the father-child relationship legally. In a case where an unmarried
woman gives birth or a husband denies the father-child relationship of a child
born to his wife, the child is considered fatherless under Japanese law. If the
actual father then recognizes the child, this legally establishes the
father-child relationship. If the father refuses to recognize the child as his,
the mother or the child can file a claim for recognition to the family court.
That is called forced recognition. In the
countries mentioned above, the legal father-child relationship is established
without the need for the step of recognition — such as by virtue of the fact
that the assumed father was married to (or only recently separated from) the mother,
for example.
In most child-recognition cases in Japan, the
judge will ask the assumed parents to take a DNA test. This is because a DNA
test is the most reliable evidence to prove the biological relationship between
child and parent.
But this is not the only option: The mother can
also prove the father-child relationship if she can convince the judge — beyond
reasonable doubt — that she had sex with the man during the time when she got
pregnant, and if the blood type of the child makes sense as the result of a
possible union between the suspected father and birth mother. (For example, if
both parents’ blood type is A, the child’s blood type must be A or O.) The man
can attempt to rebut this, denying he had sex with the mother or admitting it
but claiming she also had sex with other men during the period when she got
pregnant. The key evidence is the sex; the blood type is supplemental.
That was the traditional way of proving the
biological relationship in court recognition proceedings before DNA testing was
available. And it is still a legally acceptable way to determine paternity. In
other words, family law in Japan has not changed despite the development of DNA
technology.
In Japan there are no regulations that allow a
judge to order one party to have a DNA test against their will. However, judges
love to have DNA tests in recognition proceedings because the proof is simple
and clear. If the man refuses to take a test, the judge will ask him why
repeatedly, and may eventually decide that the man is not credible or honest.
In some cases, a judge will even decide that this reticence to take a DNA test
is indirect evidence that the man is the father. In that sense, refusing to
take a test can backfire on the suspected father. Still, the burden of proof is
on the plaintiff — the child or mother — to convince the judge that the man is
the father.
Before resorting to court, however, it is
mandatory to go through mediation first, in the hope of reaching mutual
agreement without the need to go to trial. If the supposed father does not show
up to the mediation sessions, the judge will decide that an agreement between
both parties is unachievable and declare the mediation over. Then the mother
can file litigation and the judge will make a decision, which is binding on
both parties. Thus, in the long run, not showing up to mediation will not help
the father’s case. And once a father has been legally recognized as such, he
becomes responsible for child support and other obligations.
Laws concerning the parent-child relationship
are complex. Plus, family law in Japan has not kept up with advances in
technology. In fact, the main principles in Japanese family law were
established about a century ago based on the French legislation at that time,
which had its origin in Roman law.
In Roman law, the parent-child relationship is
determined according to the following principles: The mother is the female who
gave birth to the child, and the father is the male who is married to the
mother. This means that being the biological father does not necessarily mean
being the legal father, and vice versa.
This system worked to make the father-and-child
relationship within married couples stable for thousands of years before the
invention of the DNA test, but today it is clearly outdated. In some countries,
family law has adapted to the status quo, but in Japan, lawmakers are
notoriously conservative when it comes to changing laws, particularly when they
affect the family. Here are some examples of the contradictions we are facing
today:
The first area of confusion concerns the denial
of the father-child relationship by the husband and its limitations. In a case
where a wife gives birth to a child of a male other than her husband, the child
is legally considered the child of the husband — unless the husband files an
objection with the family court within a year of learning of the birth. In
2014, the Supreme Court ruled that after the time limit has passed, with no
objection having been filed, the established father-child relationship cannot
be nullified even if a DNA test later makes clear that there is no biological
relationship.
On the other hand, precedent has established
that, in a case where a married couple has not had the opportunity to have sex
— for example, if the husband was abroad at the time of conception — the child
shall not be deemed to be the child of the husband. In such a case, the legal
child-father relationship can be annulled regardless of the one-year rule. The
mismatch between these two rulings has been widely criticized.
A second problem concerns surrogate mothers.
Perhaps surprisingly, there is no law that mentions surrogate motherhood in
Japan. So, the two-millennium-old Roman principle still rules: The woman who
provided the egg is not the mother; the one who gave birth is. So, if a mother
turns to a surrogate to carry her baby to term, she must then legally adopt the
baby after birth to be considered the child’s legal mother.
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