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Developments in 2022 ̶ Academic Societies 109 Keiko Nagaiwa （Associate Professor, Aichi Gakuin University）3 “Liability for Indirect Infringement on Commercial Operations” Daisuke Takaoka （Associate Professor, Kyushu University）Day Two （October 9th）:Symposium: 「The Elderly and Civil Law」Chairpersons: Naoki Kanayama （Emeritus Professor, Keio University） and Naoya Katayama （Professor, Keio University）1 “The Various Faces of the Elderly and the Role of Elder Law ─ An Approach from a Civil Law Perspective” Katsumi Yoshida （Emeritus Professor, Hokkaido University）2 “The Elderly and Residence ─ On Private Housing with Social Welfare Services for the Elderly” Hiroyuki Hirano （Professor, Keio University）3 “The Elderly and Torts ─ The Elderly as an Independent Subject and the Elderly as a Subject Requesting Protection” Tomohisa Ishio （Assistant Professor, Kanazawa University）4 “The Elderly and Property ─ Succession and Management of Property” Kiyoko Nishi （Professor, Keio University）5 “The Elderly and Consumer Protection ─ Universal Design of the Law on Consumer Protection” Tsuneo Matsumoto （Emeritus Professor, Hitotsubashi University; Advisor, National Consumer Affair Center of Japan）Commentators:Norio Higuchi （Professor of Law, Musashino University）4.　Family Law39th Annual Meeting of the Japan Society for Socio-Legal Studies on Family Issues110 Waseda Bulletin of Comparative Law Vol. 42The Japan Society for Socio-Legal Studies on Family Issues held its 39th Annual Meeting on November 6, 2022.（1） Young Scholars’ Colloquium （a） “Revision of the Adult Guardianship in the Argentine Civil and Commercial Code and Conformity with the Convention on the Rights of Persons with Disabilities” 　Shiho Yamaguchi （Ph.D student, Keio University） （b） “Consanguinity and its Limitations in German Parenthood Law: Focusing on Biological Paternal Rights” 　Yukiko Yamashita （Associate Professor, Meijo University）（2）  Symposium: “Current Status and Issues of the Division of Inherited Property” （a） “Aim of the Symposium” 　Yu Kamitani （Professor, Doshisha University） （b） “The Significance of the Division of Inherited Property: A General Study” 　Kiyoko Nishi （Professor, Keio University） （c） “Legal status before the Division of Inherited Property” 　Yoshio Shiomi （former Professor, Kyoto University） 　＊Since he passed away suddenly on August 19, 2022, a pre-recorded video was broadcast. （d） “Division of Inherited Property and the Third Party” 　Takeshi Ishida （Professor, Hitotsubashi University） （e） “Current Situation and Issues in the Division of Inherited Property: From the Judge’s Perspective” 　Nobuyuki Seki （Judge, Tokyo District Court） （f） “The Current Situation and Issues of the Division of Inherited Property: From a Lawyer’s Perspective” 　Katsuhisa Masuda （Attorney-at-Law, Osaka Bar Association） （g） “Comment 1” 　Atsushi Omura （Professor, Gakushuin University） （h） “Comment 2” 　Masaaki Matsubara（Attorney-at-Law, Tokyo Bar Association）Developments in 2022 ̶ Academic Societies 111（3） Discussions Moderators: Yu Kamitani （Professor, Doshisha University） and Teiko Tamaki （Professor, Niigata University）（4） Summing Up Atsumi Kubota （Professor, Kobe University）5.　Law of Civil Procedure and BankruptcyThe Japan Association of the Law of Civil Procedure held its 92nd General Meeting at Ryukoku University and Online on May 21 and 22, 2022.Individual Reports （First Day）:（1） “The Significance and the Role of the Civil Execution Agency in the Field of Compulsory Execution of Surrendering Custody of a Child” Ayako Imazu （Associate Professor, Tohoku University）（2） “The Publication of Court Proceedings on Civil Litigation in the Digital Age and its Issues” Manabu Honma （Associate Professor, Kanazawa University）（3） “The Interpretation and the Operation of the Civil Execution Act which was Amended in 2019” Satoshi Aizawa （Judge, Osaka District Court）（4） “The Right to Conceal Confidential Information which is Obtained through Legal Services” Hiroshi Tega （Professor, Tokyo Metropolitan University）Symposium （Second Day）:“Considerations on the Discipline of Civil Judicial Activity” Chairperson: Masahiro Takada （Professor, Waseda University）（1） “The Concept of Judicial Discretion in Civil Procedure and its Discipline: Especially about the Judicial Decision Concerning Control of Litigation Proceedings” Shigeru Tsuruta （Professor, Osaka Metropolitan University）（2） “Rules About the Judicial ‘Small Decision’ and Its Operation” Hirotoshi Uchiumi （Professor, Rikkyo University）

English

ACTIVITIES OF ACADEMIC SOCIETIES: 4. Family Law

Shundo, Yu

147Topics of Japanese Law 2022  ̶ aboRtion and spousaL consent in JapanAbortion and Spousal Consent in JapanYu SHUNDO （Research Associate, School of Law） On June 24, 2022, the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization （142 S. Ct. 2228） overruled Roe v. Wade （410 U.S. 113 （1973））, which guaranteed the right to abortion. This decision was widely reported in newspapers and on television worldwide, including in Japan. There has been a great deal of media concern about the situation in the U.S., but what about the situation surrounding abortion in Japan? This article discusses the legal situation surrounding abortion in Japan, with particular attention to the requirement of spousal consent. In essence, the legal system surrounding abortion in Japan lacks a women’s, trans, or nonbinary people’s “rights” perspective.1. Maternal Health Act and Abortion Japan was one of the first countries in the world to legalize abortion. Although the crime of abortion continues to exist in the penal code, the Eugenic Protection Act was enacted in 1948, opening the way for legal abortion. In 1996, the eugenic provisions of this Act were removed, and the Act was renamed the Maternal Health Act. However, it still retains abortion as a crime in the penal code, and the Act with a history of population policy makes abortion possible. Article 14 of the Maternal Health Act provides that, with the consent of the spouse, a designated doctor may perform an abortion in cases where 1） the continuation of pregnancy or delivery may significantly damage the pregnant person’s physical health due to bodily or economic reasons, or 2） a person was raped in a violent or threatening manner or at a time when the person could neither resist nor refuse and becomes pregnant. The term “abortion” as defined in the Act means artificially discharging a fetus and its appendages out of its pregnant person’s body in a period when the fetus cannot survive outside the pregnant person’s body, and the notice stipulates that the “time when life cannot be sustained outside the pregnant person’s body” is up to 22 weeks of pregnancy. （March 20, 1990, Ministry of Health and Welfare, Health and Medical Service Bureau, Mental Health Division, Director of the Mental Health Division, to the 148 Waseda BuLLetin of CompaRative Law Vol. 42heads of prefectural health departments （bureaus）: “Regarding Changes in the Standard of Time for Performing Abortions under the Eugenic Protection Act.”）2. Spousal Consent Article 14 of the Maternal Health Act stipulates that spousal consent is required to perform an abortion. Therefore, it can be pointed out that this requirement gives the spouse the right to veto the abortion and that the Act also protects “the interest of the spouse in the child to be born.” As was aptly stated in Planned Parenthood v. Casey （505 U.S. 833 （1992））, in which spousal notification was an issue, that “the analysis does not end with the one percent of women upon whom the statute operates,” the spousal consent requirement is critical for some pregnant persons, such as victims of domestic violence （DV）. Nevertheless, the Maternal Health Act requires spousal consent for all abortions without exception. In 2020 , lawyers fi led a request with the Japan Association of Obstetricians and Gynecologists （JAOG） to not require spousal consent for victims of sexual violence. In response, the JAOG made an inquiry to the Ministry of Health, Labor, and Welfare （MHLW）, which responded that Article 14 of the Maternal Health Act does not require victims of sexual violence to obtain their perpetrator’s consent for abortion （August 24, 2020, notice from the Executive Director of the Japan Medical Association to the Director of the Maternal and Child Health Division, Child and Family Bureau, Ministry of Health, Labor and Welfare, “Regarding Questions about the Maternal Health Act （Inquiry）”; August 28, 2020, notice from the Director of the Maternal and Child Health Division, Child and Family Bureau, Ministry of Health, Labor and Welfare to the Director in charge of maternal and child health, Japan Medical Association, “Regarding Questions about the Maternal Health Act （Reply）”）. As for victims of DV, the MHLW responded in 2021 to the effect that spousal consent is not required if the marriage has substantially broken down due to DV or other reasons （March 4, 2021, “Notice from the Executive Director of the Japan Medical Association to the Director of the Maternal and Child Health Division, Child and Family Bureau, Ministry of Health, Labor and Welfare: “Regarding Questions about the Maternal Health Act （Inquiry）”; March 10, 2021, “Notice from the Director of the Maternal and Child 149Topics of Japanese Law 2022  ̶ aboRtion and spousaL consent in JapanHealth Division, Child and Family Bureau, Ministry of Health, Labor and Welfare to the Director in charge of maternal and child health, Japan Medical Association: “Regarding Questions about the Maternal Health Act （Reply）”）. Thus, in 2020 and 2021, some exceptions were made by interpretation. However, they are the only exceptions; in principle, the Maternal Health Act continues to require spousal consent. Note that if a married person becomes pregnant as a result of sexual violence by a person who is not her husband, her husband’s consent is required to have an abortion. In addition, the Maternal Health Act only requires spousal consent if the pregnant person is married. However, research has shown that, in practice, the consent of the genetic potential father of the fetus may be required even if the pregnant person is not married. Strictly speaking, it is not necessary to have the genetic potential father’s consent. Because the doctor does not strictly test the fetus’ genes, pregnant people must simply present the document with the partner’s signature. In a survey conducted jointly by NHK（Japan Broadcasting Corporation） and a medical information website in 2022 （Yu Sato, “Abortion for unmarried people, 60％ ‘may not seek’ their partner’s consent ◆Vol. 1,” m3.com, September 8, 2022, https://www.m3.com/news/open/iryoishin/1076370, Accessed December 20, 2022）, 33％ of doctors said they would seek their partner’s consent in any case if they were not married, and 62％ of doctors said that they might not seek spousal consent under certain circumstances. It appears that the practice of seeking consent, even if not married, continues among some doctors for fear of trouble with the male partner. Therefore, although efforts have been made in recent years by lawyers to clarify the interpretation of spousal consent in Article 14 of the Maternal Health Act and to make exceptions, the text of the Act itself has not changed, and Article 14 still requires spousal consent to obtain an abortion. The existence of this article has often resulted in pregnant people being required to obtain their partner’s consent in unmarried cases, where it would not be required by law.3. Spousal Consent and Abortion Pill The overruling of Roe v. Wade has brought abortion pills into the spotlight in the United States. Oral abortion pills are two drugs─ Mifepristone and Misoprostol─which are taken in sequence to cause an 150 Waseda BuLLetin of CompaRative Law Vol. 42abortion. These abortion pills have been approved in more than 80 countries worldwide, and are the most commonly used abortion method in Europe. In Japan, however, abortion pills have not yet been approved and are currently under discussion and in the final stages of clinical trials. In May 2022, the Diet clarified that abortion using oral abortion pills is also considered an abortion under the Maternal Health Act; therefore, the requirements of the Act must be observed, and spousal consent is required for the use of the drug （Statement by Yasuhiro Hashimoto, Director General, Child and Family Bureau, Ministry of Health, Labor and Welfare, May 17, 2022, House of Councilors Committee on Health, Labor and Welfare, 208th Diet Session, No. 14）. Even if the oral abortion pill were approved as expected, the spouse would still have the right to refuse the abortion.4. The View of the Academic Literature Despite the continuing serious violation of a woman’s right to self-determination in the form of spousal consent, abortion in Japan has not been squarely challenged as a constitutional issue in court. Most academic opinions state that the right to self-determination, based on Article 13 of the Japanese Constitution, includes the decision to have an abortion （Nobuyoshi Ashibe, Constitution ［7th ed.］ （Iwanami Shoten, 2019）, p. 128; Yoichi Higuchi, Constitution ［4th ed.］ （Keiso Shobo, 2021）, p. 297; Yasuo Hasebe, Constitution ［7th ed.］ （Shinseisha, 2018）, p. 149, etc.）. Although some older literature exists that mentions that the father’s interests should also be considered （Setsu Kobayashi, “Constitutional Issues and Current Status in the Abortion Decision,” Jurist No. 765, p. 26 （1982））, it is now understood that the right to self-determination is an individual right, and therefore, the spouse is not allowed to have the right to veto the decision for abortion. There is also the view that the “right to abortion” is based on equality between men and women under Article 24 of the Japanese Constitution （Shigenori Matsui, “On the Right to Self-Determination （II, Completion）,” Osaka Law Review, vol. 45, p. 780 （1995））. From this standpoint, spousal consent would not be permissible, as a spouse who does not assume the physical and psychological burden of pregnancy and childbirth would have the right to force a woman to give birth.151Topics of Japanese Law 2022  ̶ aboRtion and spousaL consent in Japan5. Conclusion In the “Abortion Care Guidelines” issued by WHO in 2022, it is recommended that spousal, parental, or hospital authority permission should not be a requirement （WHO, Abortion Care Guideline, 43（2022））. The spousal consent requirement in Article 14 of the Maternal Health Act is not only impermissible under the Japanese Constitution, as it violates the right to self-determination or gender equality, at least in theory, but also violates international standards. In addition to spousal consent, abortion in Japan is fraught with other problems. Although Japan’s health insurance system covers a wide range of areas, pregnancy, childbirth, and contraception are not covered by health insurance; therefore, abortion requires a co-payment of at least 100,000 yen. This large cost burden is also a major obstacle to abortion access. The large cost burden, like spousal consent, is also a greater barrier to abortion access for those who are on a more vulnerable social footing, such as minors or DV survivors. The Maternal Health Act, which is the basis for abortion practice in Japan, originated from the Eugenic Protection Act, the Act of the state’s population and eugenic policy, and even today, the perspective of the “rights” of the pregnant person has not been introduced into Japanese abortion policy. In Japan, where there is no precedent that could be “overturned,” like Roe v. Wade, it is necessary to review abortion policy from the perspective of individual rights as soon as possible. One of the highest-priority improvements would be the elimination of the requirement of spousal consent. （December 20, 2022）

Abortion and Spousal Consent in Japan

雨宮, 和輝

Amemiya, Kazuki

Japanese

神辺靖光「一九五〇年前後の早稲田大学をめぐる回想」

早稲田大学における女性教職員の数量的分析 -一九六〇~八〇年代を中心として-

Xu, Yiran

Representing In-Betweenness in Postwar Japan: Shimada Masahiko's Suisei no Jūnin

小松茂久教授 略歴・業績

表紙

国際文学館の研究活動報告 2022年10月-2023年9月

早稲田大学修士(工学)master thesi

坂東, 慶紀

BANDO, Yoshiki

ICNサービスメッシュの可視化によるネットワーク監視

Hirayama, Ren

平山, 廉

Sonoda, Teppei

薗田, 哲平

Takai, Masanaru

高井, 正成

Thaung-HTIKE

タウン タイ

Zin-Maung-Maung-THEIN

ジン マウン マウン テイン

A new skull of the side-necked turtle (Order Testudines: Infraorder Pleurodira: Family Podocnemididae) from the Neogene of Myanmar

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