Abstract
This chapter begins with a brief historical background of adoption in Japan and an outline of the social context. It then deals with the emerging characteristics of the adoption process and the modern influences on its development before providing an overview of modern adoption policy and law. The template of legal functions (see, Chap. 3) is then applied to track the workings of the adoption process, though the concern in applying the template is as much to identify the ways in which Japan fails to fit the mould as to gather data equivalent to that found in respect of other jurisdictions. In the main, the chapter focusses largely on the regulatory framework: dealing with the roles of the parties and agencies involved; examining the thresholds for entering and exiting the process; the orders made by the court and their effects; and the consequences in terms of information rights etc. for all parties. The chapter concludes by considering the more singular characteristics of the adoption process in Japan and their significance up to and including 2014.
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Notes
- 1.
Morris, R. 1894. Adoption in Japan. Yale Law Journal 4: 143.
- 2.
The Civil Code was mainly based on the contemporary draft of the German Civil Code. Parts 1, 2 and 3 were implemented in 1896 and part 4 (family) and 5 (succession) in 1898. After some revision, the current Civil Code differs from its 1896 and 1898 predecessors and although most of parts 1, 2 and 3 remain similar to the original, parts 3 and 4 were completely revised in 1947.
- 3.
See, Hozumi, Nobushige. 1912. The new Japanese civil code. Tokyo: Maruzen Kabushiki-Kaisha.
- 4.
See, Matsushima, Y. 1999. Japan: What has made family law reform go Astray?’. In The international survey of family law, 193–206. The Hague: ISFL, Martinus Nijhoff Publishers where this explanation is offered:
“Iye was the vertically extended family system in which every family member was subject to the control of the head of the family and women were always subordinate to men” at p. 197.
The Civil Code reforms of 1947 ostensibly abolished the Iye system.
- 5.
See, Hozumi, N. 1901. Ancestor-worship and Japanese law. Tokyo: Maruya & Co Ltd Publishers.
- 6.
Ibid, at p 56.
- 7.
The adoption process has long served as a means whereby a married person may legally adopt his or her lover—with or without the consent of their spouse. In the absence of same sex marriage, adoption has often provided the means for discretely establishing a legal relationship for homosexual couples. The related case law, particularly as regards conflicting inheritance rights, is intriguing. See, further, Bryant, T.L. 1990. Sons and lovers: Adoption in Japan. The American Journal of Comparative Law 38: 299–336.
- 8.
Ibid, for an authorative account of adult adoption in Japan.
- 9.
Morris, R., ‘Adoption in Japan’ op cit at p. 145.
- 10.
In keeping with the ancient Roman practice of ‘adrogatio’ or ‘adrogation’ whereby a sui iuris male was adopted to became the legal heir of a childless man so as to ensure the continuity of the family name and the undertaking of religions rituals and memorials after his death (Gai institutiones 1.99–107 and later Digesta Iustiniani 1.7.2 (preamble). See, further, Borkowski, A. 1994. Textbook on Roman law, 2nd ed, 136–137. London: Blackstone and Kaser, M. (Trans. R. Dannenbring). 1993. Roman private law, 4th ed, 310. Pretoria: South Africa.
- 11.
The author acknowledges the advice of Satoshi Minamikata on this matter.
- 12.
The practice of adopting men in their 20s and 30s to rescue biologically ill-fated families and ensure a business heir has been held to be unique to Japan: see, Mehrotra, V., et al. 2011, March. Adoptive expectations: Rising sons in Japanese family firms, NBER working paper no. w16874. Available at SSRN: http://ssrn.com/abstract=1784152.
- 13.
See, Paulson, J.L. 1984. Family law reform in postwar Japan: Succession and adoption. Ph.D. dissertation, Department of History, University of Colorado.
- 14.
See, U.S. Bureau of Labor Statistics at: http://www.census.gov/compendia/statab/2011/tables/11s1335.pdf
- 15.
In 1955 there were 1,170,143 abortions; 550,127 in 1985; 343,024 in 1995; and 341,588 in 2001.
- 16.
The author acknowledges the advice of Satoshi Minamikata on this matter.
- 17.
In 1955 there were 14,000 abortions performed on minors compared with 40,000 in 2003.
- 18.
- 19.
See, Ministry of Health, Welfare and Labour, “Reference Material: Current State of Alternative Care”, March 2014 (as cited in Human Rights Watch, ‘Without Dreams: Children in Alternative Care in Japan’, Tokyo, 2014, at: http://www.hrw.org/reports/2014/05/01/without-dreams-0 at p. 12.
- 20.
See, Harada, Ayako. 2010. The Japanese child protection system: Developments in the laws and the issues left unsolved. In The international survey of family law, 2010 Edition, Family law, ed. B. Atkin. Bristol: Jordan Publishing at p. 219.
- 21.
For example, according to the judicial statistics for 2012, the outcome of 184 applications to the Family Court for the forfeiting and suspending of parental rights and duties was: 32 granted; 17 rejected; and 129 withdrawn by the parties (child’s relatives, authority and other interested persons).
- 22.
Ibid, at p. 2.
- 23.
Ibid, at p. 50.
- 24.
Ibid, at p. 51.
- 25.
Ibid, at p. 1.
- 26.
See, the Social Welfare Act, s 2(2)(b).
- 27.
Ibid, at p. 74.
- 28.
Ibid at p. 19.
- 29.
See, Committee on the Rights of the Child, op cit, which states:
“The Committee is concerned at the number of institutionalized children and the insufficient structure established to provide alternatives to a family environment for children in need of special support, care and protection” at para. 18.
- 30.
Hayes, P., and T. Habu. 2006. Adoption in Japan: Comparing policies for children in need. London/New York: Routledge, at ‘Preface’ p. xii.
- 31.
See Bryant, T.L., ‘Sons and Lovers: Adoption in Japan’, op cit, at p 300, citing 1985 data. He records that most adoptions of minors then involved adoptees who were either the children of relatives or a spouse’s children from a former marriage.
- 32.
See, the Economist, ‘Keeping it in the family: Family firms adopt an unusual approach to remain competitive’ (December 1, 2012).
- 33.
See, Ministry of Health, Welfare and Labour, “Reference Material: Current State of Alternative Care”, March 2014 (as cited in Human Rights Watch, ‘Without Dreams’ report, op cit, at p. 4).
- 34.
Ibid, at p. 2.
- 35.
Causing protest from the Japan Federation of Bar Associations which, in 2003, asked why “the Japanese government has taken no measures to prevent our children going abroad to live as adopted children”. Cited by Hayes and Habu, op cit at p. 81.
- 36.
According to a Sept. 20, 2004 article in the Washington Times, ‘Japan to Probe Overseas Adoption’, Japan plans to scrutinize its adoption agencies and related legal procedures relating to overseas adoptions after recent reports that some adoptive families have been asked to make huge donations to agencies. See, further, at http://washingtontimes.com/upi-breaking/20040919-111609-9435r.htm
- 37.
Hayes and Habu, op cit, at p. 82. Also, see, Judicial Statistics, General Secretariat, Supreme Court of Japan which provides the following data for international adoptions: 1996, 382 and 30 ‘special’ adoptions; 1997, 403 and 23; 1998, 450 and 29; 1999, 446 and 26; 2000, 500 and 34; and 2001, 460 and 31.
- 38.
See, Judicial Statistics 2012 which records: adoption orders, 326; and special adoption orders, 29.
- 39.
See, Committee on the Rights of the Child, op cit, which states:
“In light of article 21 of the Convention, the Committee is concerned at the lack of necessary safeguards to ensure the best interests of the child in cases of intercountry adoption” at para 17; and
“The Committee recommends that the State party take the necessary steps to ensure that the rights of the child are fully protected in cases of intercountry adoptions and to consider ratifying The Hague Convention of 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption” at para 38.
- 40.
Note the ruling of the Supreme Court (4th June, 2008) in 2002 Hanrei Jiho; 1267 Hanrei Taimuzu 92. Judicial recognition was then given to the principle that discrimination against the legal interests of a child born out of wedlock was unconstitutional.
- 41.
See, HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 2.4.a.
- 42.
See, Hayes and Habu, op cit, at p. 45.
- 43.
The Civil Code, Article 798.
- 44.
See, HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 9.c.
- 45.
Ibid, at para 11.b.
- 46.
See, Human Rights Watch report ‘Without Dreams’, op cit, at p. 75.
- 47.
The Civil Code, Article 798.
- 48.
Civil Code, article 798. The author is indebted to Satoshi Minamikata for this information.
- 49.
See, Akiba, J. 2004. Japan: International family law practice in Japan. In The international survey of family law, ed. A. Bainham, 271–291. Bristol: Jordan Publishing, at p 276.
- 50.
Civil Code, 817-2—817-9.
- 51.
The Civil Code, Article 834.
- 52.
The Civil Code, Article 817, para 10.
- 53.
Ministry of Foreign Affairs 2001: 113, 143.
- 54.
The author is indebted to Satoshi Minamikata for this information.
- 55.
See, Committee on the Rights of the Child, Concluding observations of the Committee on the Rights of the Child: Japan, U.N. Doc. CRC/C/15/Add.90 (1998) which states that:
“The Committee is concerned that legislation does not protect children from discrimination on all grounds defined by the Convention, especially in relation to birth, language and disability. The Committee is particularly concerned about legal provisions explicitly permitting discrimination, such as article 900 (4) of the Civil Code which prescribes that the right to inheritance of a child born out of wedlock shall be half that of a child born within a marriage, and about mention of birth out of wedlock in official documents. It is also concerned at the provision of the Civil Code stipulating a different minimum age of marriage for girls (16 years) from that of boys (18 years)” at para 14.
These same matters were the subject of concern for the Committee in its 2004 report (see, paras.22 and 23). Note also the Committee’s recommendation “that the State party amend its legislation in order to eliminate any discrimination against children born out of wedlock, in particular, with regard to inheritance and citizenship rights and birth registration, as well as discriminatory terminology such as ‘illegitimate’ from legislation and regulations” (at para. 25).
- 56.
See, Concluding Observations of the Committee on the Rights of the Child, Japan, U.N. Doc. CRC/C/15/Add.231 (2004):
“The Committee is concerned that there is limited monitoring or control of domestic and intercountry adoptions, and that there is very limited data available on domestic and intercountry adoptions” (at para. 39).
- 57.
Hayes, P., and T. Habu. 2006. Adoption in Japan: Comparing policies for children in need. London/New York: Routledge, at ‘Preface’ p. xii.
- 58.
Op cit, at p. 9. However, Satoshi Minamikata suggests that this may be a misperception due to a ‘western’ view of an appropriate level of professional intervention.
- 59.
Note the existence of the Society for Study of Adoption and Foster Placements for Children.
- 60.
See, Harada, Ayako. 2010. The Japanese child protection system: Developments in the laws and the issues left unsolved. In The international survey of family law, 2010 Edition, Family law, ed. B. Atkin. Bristol: Jordan Publishing at p. 231.
- 61.
See, Hayes, P. 2008. ‘Intercountry Adoption: A Comparative Analysis of its Effect on Domestic adoption Rates’, Full Research Report, ESRC End of Award Report, RES-000-22-1840. Swindon: ESRC, 2009 at p 5 (citing Hayes, P. 2007. The role of international adoption in Japan’s childcare system. East Asian Review 11: 25–39 and Hayes, P. Special adoption in Japan: Its problems and prospects. Adoption Quarterly 11(2): 81–100).
- 62.
Satoshi Minamikata advises that under the Social Welfare Act, s 2(3)(b) and s 69, such agencies must register with the local authority or incur penalties of 1 year imprisonment and/or 500,000 yen fine.
- 63.
See, Tünde Novák, The Globe (November 27, 2011), at: http://ajw.asahi.com/article/globe/feature/adoption_option/AJ20111127190028a
- 64.
Cited by Hayes, P., and T. Habu. 2006. Adoption in Japan: Comparing policies for children in need. London/New York: Routledge, at p. 10.
- 65.
See, Committee on the Rights of the Child, op cit, which states that:
“The Committee notes with concern that although the Convention on the Rights of the Child has precedence over domestic legislation and can be invoked before domestic courts, in practice courts in their rulings usually do not directly apply international human rights treaties in general and the Convention on the Rights of the Child in particular” at para. 7.
- 66.
Civil Code, Articles 792 and 793. Section 793 states that a person shall not adopt an older person than him/her and so he/she could, theoretically, adopt a person whose birth date is the same (not older than an adopter).
- 67.
Civil Code, Article 817-7.
- 68.
Civil Code, Article 817, 5.
- 69.
Civil Code, Article 797.
- 70.
Interestingly, in Japan, of live births in 2005, the proportion born to unmarried mothers was approx 2 %, compared with approx 40–43 % in the U.K.
- 71.
Civil Code, Article 833.
- 72.
The author acknowledges advice from Satoshi Minamikata on this matter.
- 73.
Civil Code, Article 817, 3.
- 74.
Civil Code, Article 817, 4
- 75.
Civil Code, Article 817, 5.
- 76.
Civil Code, Article 795.
- 77.
See, further, HccH, ‘Country Profile for Intercountry Adoption: Japan’, the Permanent Bureau, 2013, para 2.1.C. at: http://www.hcch.net/upload/adop2013cp_jp.pdf
- 78.
See, Hayes, P., and Habu, T., Adoption in Japan: Comparing Policies for Children in Need, op cit. Although, it remains the case that most adoptions of minors in Japan are family adoptions, usually by step-parents.
- 79.
See, Hayes, P., and T. Habu. 2006. Adoption in Japan: Comparing policies for children in need. London/New York: Routledge, at p. 44.
- 80.
See, HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 2.1.
- 81.
Civil Code, Article 817, para 8.
- 82.
See, Judicial Statistics 2012.
- 83.
In the case of an adult adoption, one spouse can apply without the consent of the other but, in that event, the adoption binds only the adopter and adoptee to the exclusion of the non-consenting spouse.
- 84.
See, Hayes, P., and Habu, T., op cit, at chapter 5, pp. 56–68.
- 85.
Civil Code, Article 817-5, 6.
- 86.
Civil Code, Article 798.
- 87.
All child adoption cases are examined by a Family Court that applies much the same set of criteria as listed in the U.K. statutory welfare checklist to ascertain a child’s welfare interests.
- 88.
Hayes, P., and T. Habu. 2006. Adoption in Japan: Comparing policies for children in need. London/New York: Routledge, at p. 5.
- 89.
See, HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 2.3.b.
- 90.
Civil Code, Article 797.
- 91.
Note to author (24.12.2013).
- 92.
The author is indebted to Satoshi Minamikata for this information.
- 93.
Ibid. He advises that in the case of a minor adoptee, adoption will take effect at the date the adoption order is finalised. In the case of adult adoption, it will take effect at the time the adoption notice is submitted to the office for registration.
- 94.
See, the Family Affairs Proceedings Act: s 16 (4) provides that the applicant in an ‘ordinary’ adoption is entitled to appeal; s 164(8) provides that in a ‘special’ adoption the appellants may be—the birth parents, a person holding the parental rights and duties but not parents, a guardian of the child, parents holding the parental rights and duties over the parent of the adoptee (in rare cases this may be a grandparent), and a guardian of the parent of the adoptee.
- 95.
Note, however, that section 734 (1) of the Civil Code permits marriage between an adoptee and adoptive sibling.
- 96.
The Civil Code, Article 877.
- 97.
See, further, Bryant, T.L. 1990. Sons and lovers: Adoption in Japan. The American Journal of Comparative Law 38: 299–336.
- 98.
If either parent abuses parental power or is guilty of gross misconduct, the Family Court may, on the application of any of the child’s relatives or of a public procurator, abrogate parental rights.
- 99.
The Civil Code, Article 817-10.
- 100.
See, Matsushima, Y. 1999. Japan: What has made family law reform go astray?’. In The international survey of family law, 193–206. The Hague: ISFL, Martinus Nijhoff Publishers where this explanation is offered:
“The Koseki is a registration system under which every family is registered with the government. It is said that the Koseki system was established as far back as the seventh century and its current form came into being after the Meiji Restoration. The Family Registration Law of 1871 designated all citizens as belonging to a unit for registration, classifying people into either head of the family or family members. Births, marriages, divorces and deaths are recorded. The Koseki system acts as an identifier for Japanese people in relation to such matters as whether they are of Japanese nationality or not, and it has carried great legal and social significance” at p. 197.
- 101.
See, Ministry of Health, Welfare and Labour, “Reference Material: Current State of Alternative Care”, March 2014 (as cited in Human Rights Watch, ‘Without Dreams’ report, op cit, at p. 12).
- 102.
Ibid, at p. 11.
- 103.
Op cit at p. 149.
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O’Halloran, K. (2015). Japan. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_16
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