Special Workshop Abstract

Satoshi Kotake, Associate Professor, Aichi University of Education

For the last decade the idea of reproductive health and rights has become prominent in international conferences and documents. The term has been used in various contexts and the precise meaning of this nascent concept is still equivocal. Nevertheless, there is an agreement that the central portion of this idea concerns abortion law and public policy in each country. The international community has been moving toward recognition of women’s reproductive rights and reproductive freedom involving abortion.

The present system of abortion law in Japan does not escape from critical examination from the viewpoint of this newly developed idea. It is commonly believed that abortion is not a serious issue in Japan as is the case in the United States or Germany, for example. However, a lack of dialogue does not automatically give imprimatur to the present system of abortion law. Although abortion in action seldom comes to the surface in society in general, there still remain a lot of unsettled questions concerning abortion law in books. This paper will discuss the problems of the present system of abortion law in Japan, particularly focusing on the 1996 revision of the Eugenic Protection Law (Yusei Hogo Ho), which was accompanied with the change of the title to the Protection of the Mother’s Body Law (Botai Hogo Ho).

In the Japanese legal system, abortion has generally been banned by the 1907 Penal Code (Keiho), but permitted in exceptional cases if it falls under one of the enumerated requirements for the legalization of abortion. Until 1996, the Eugenic Protection Law provided these requirements, including mental illness and hereditary diseases of the pregnant woman or her spouse or their relative within the fourth degree of consanguinity; leprosy of the pregnant woman or her spouse; mother’s health; and rape. Among these, abortions were mostly procured by relying upon the mother’s health requirement that permitted abortion where the continuation of pregnancy or childbirth would be substantially detrimental to the health of the mother physically or economically. Thus, the requirement on economic grounds, which legitimized most of the approximately less than four hundred thousand reported annual abortions, was crucial for those who were interested in this topic. However, while there were twice unsuccessful movements supported by conservative religious groups to eliminate the requirement on economic grounds, the 1996 revision of the law was not triggered by their moral concerns but rather by those of handicapped persons’ organizations. They severely criticized the existing provisions that sustained discrimination against mentally or physically challenged persons. As a result, after rejecting the wholesale reexamination of the law demanded by women’s groups and obstetrician gynecologists’ organizations without any serious discussion, the Diet eliminated only the provisions based on eugenic thought. The requirements for a legal abortion were limited to the circumstances where the continuation of pregnancy or childbirth may have the possibility of substantially damaging the health of the mother physically or economically and where pregnancy was the result of sexual intercourse either with violence or intimidation or when the victim was unable to resist or refuse it.