Surrogate births raise complex issues

News that a woman in her 50s has acted as a surrogate mother for her daughter and her daughter’s husband underscores the need to enact a law governing how to legally treat children born in this way. The guidelines of the Japan Society of Obstetrics and Gynecology prohibit doctors from engaging in surrogacy-related procedures.

But reality is leaping ahead of the guidelines. Advances in fertility medicine are likely to lead to an increase in the number of surrogate births. Legislation is necessary not only to avoid legal troubles but also to protect the welfare of children.

More than 100 Japanese couples are believed to have had children through surrogate mothers in the United States and other countries. Among them are TV personality Aki Mukai and her husband Nobuhiko Takada, a former professional wrestler, whose case has gained public attention because the case involving their twin boys is now before the Supreme Court.

Most couples who have had children via a surrogate procedure have reportedly registered them in Japan by telling the local governments concerned that the wives went abroad while pregnant and gave birth there. But in the case of Ms. Mukai and Mr. Takada, Tokyo’s Shinagawa Ward did not accept their request to register their twin boys because it knew the true circumstances surrounding their births. The couple had made public their use of an American surrogate mother. Through books, TV and a blog, the couple described their struggle to have children through a surrogate mother, including Ms. Mukai’s loss of her womb and baby because of uterus cancer and the painful process of having her eggs extracted.

The Tokyo High Court recently ruled in favor of the couple, scrapping a family court decision that sided with Shinagawa Ward. Noting that if the twins were not recognized as the couple’s children in Japan, the children’s stateless status would continue, the high court ruling said that priority must be put on the welfare of the children. But Shinagawa Ward has appealed the ruling to the Supreme Court.

The news about the woman in her 50s serving as a surrogate mother for her married daughter came from a maternity clinic in Shimo Suwa, Nagano Prefecture. The daughter and her husband, both in their 30s, sent an e-mail to the clinic that said the daughter’s mother had offered to give birth for the daughter, who had had her cancerous womb removed. The clinic performed in vitro fertilization using the daughter’s eggs and her husband’s sperm and implanted the fertilized eggs in the womb of the daughter’s mother. Because the mother had reached menopause and had uterine atrophy, she was given hormone injections before the implantation. She gave birth in the spring of 2005. The baby’s gender was not announced.

The child was first registered as the birth mother’s child and later was adopted by the daughter and her husband — like other cases of births using surrogate mothers in Japan. Biologically, the child is the offspring of the daughter and her husband. But the facts surrounding its birth may cause some people to view it as both the daughter’s child and sibling.

The Nagano clinic has been involved in five surrogate births. The first birth — also the nation’s first — was disclosed in May 2001. In two cases, sisters became surrogate mothers.

Some states in the U.S. accept births through surrogate mothers even if fees are paid. But European countries such as France and Germany prohibit births through surrogacy while Britain accepts them if no payments are involved.

The April 2003 guidelines of the Japan Society of Obstetrics and Gynecology prohibit doctors from taking part in procedures for births through surrogacy whether they use the eggs and sperm of married couples or the eggs of surrogate mothers and the sperm of husbands. Around the same time, a health ministry panel issued a report that prohibits such births but calls for the enactment of a related law.

Reasons for the prohibition cited by the medical society include: Surrogacy ignores natural ties between mother and children that are naturally formed through pregnancy and birth and runs counter to the welfare of children; surrogate mothers may undergo unbearable physical and psychological burdens; surrogate mothers may refuse to hand over children; married couples may refuse to accept children if they differ from their expectations (deformity, diseases, etc.); and surrogacy may turn surrogate mothers and children into commodities if payments are involved.

Enacting an optimum law in a short time to solve the problem may not be easy. As a first step, public debate is needed to help people understand what problems surrogacy poses in terms of bioethics, social values and family ties.