1. Formulating Social Order
(1) Regarding relations between married couples, parents and their children, and relatives, each country has its own ideal family model, based on which the country establishes laws and regulations. The ideal family model varies greatly depending on country. In addition, the family status in reality is substantially affected by religions, local manners and customs, morals, and sense of family bonds, and is considerably far from that prescribed by the state in actually established family acts (refer to "Historical Changes Over Time in Family Act" authored by Sumitaka Harada, Horitsu-Jiho Vol.69, No. 2). Even within a single country, great differences are noted among the people, e.g. some follow traditional views of the family while others adopt new views of the family. Changes in social circumstances also substantially affect the social order surrounding the family relationship, which functions as the foundation of public order.
In Japan, the family relationship experienced enormous changes after World War II. Great changes were noted in particular in the so-called "ie" system, the Japanese traditional family system in which the head of the household was the absolute center of the family. The prewar Civil Code, for example, allowed the head of the household, typically the father, to have absolute authority over the other family members: he had the rights to designate the place of living for the other family members; his approval was necessary before family members could marry or adopt a child; and he had the right to remove the name of any family member who did not follow his orders, from the official family register. The head of the household also had the obligation of supporting the other family members. On the other hand, the Civil Code rewritten after World War II prescribes that both parents have parental rights over their child until that child reaches the age of consent, but the reform also indicates dramatic and fundamental changes according to the principles of respect for the individual's dignity and equality of the sexes. When looking at the relation between husband and wife, the wife was not entitled to have any legal capacity under the old Civil Code but is allowed to have legal capacities under the new Civil Code, according to which the wife is entitled to equal rights as the husband in terms of, among others, mutual consent of both sexes for marriage, rights and obligations between the husband and the wife, property-related matters, divorce, and parental power. Regarding inheritance, the old Civil Code prescribed that the head of the houseuld, i.e. the eldest son, inherited all the family's assets, whereas the new Civil Code establishes the basis of equal succession, irrespective of sex and age. With regard to a common-law marriage, although the related rules of the Civil Code were not rewritten, attempts have been made at providing the same extent of protection in reality for the common-law marriage as that given to officially approved marriage, e.g. the common-law marriage is treated in a more positive manner according to the view of legally protected interests. (Note that according to precedent cases, the individual against whom a common-law marriage relation is unreasonably canceled by the other, is allowed to demand compensation for damages from the other on the grounds of breaching the promise marriage, and at the same time, is allowed to claim damages on the grounds of an illegal act (Supreme Court judgment, April 1, 1958); when an individual who is not a common-law husband nor wife interferes unreasonably with and results in failure of the common-law marriage relation concerned, the individual shall have a responsibility for compensating damages as an illegal actor (Supreme Court judgment, February 1, 1963.)) Regarding the Penal Code, the Supreme Court adjudicated on April 4, 1973 that the rules regarding a person who kills his/her lineal ascendant (i.e. Article 200 of the Penal Code) were against Article 14-1 of the Constitution of Japan (which is an equality clause prescribing that all people are equal under the law). As described above, the sense of value itself has dramatically changed in connection with the relation between husbands and wives, parents and their children, and relatives.
It is expected that the family relation will change even more drastically in the future. These changes have been under active discussion from the viewpoints of social science, economics and ethics. From the viewpoint of the Family Act in particular, the issues to be addressed are how to relate the way a family should be and the individual's independence within the principles of self-assistance by family (i.e. the principles of private assistance and protection), and how to cope with related problems. Specifically, these problems are related to criticism of the current system for accepting divorce, the background of which is the increased divorce rate; law suits based on the claim that the legally prescribed length of period during which remarriage is prohibited is unconstitutional; request for free choice of different surnames by married couples; criticism of discrimination against children who are not born from the registered couple; and criticism of the fact that factual marriage or unmarried mothers are discriminated against (refer to the above-cited report by Sumitaka Harada). Under these circumstances, it is predicted that the prescribed way of reproduction and delivery will become a significant issue, particularly in connection with the discussion about right of autonomy. Upon such discussion, it is highly likely that although some of these matters are conventionally and currently regarded as unethical acts, they may in the future gradually be accepted. (Note that in this section, when we state that an act is "unethical," the authors do not only consider purely ethical issues but primarily focus on the areas controlled by the law, e.g. an act is invalid because it is contrary to public policy or good morals (according to Article 90 of the Civil Code) or the case concerned is a legal issue such as a responsibility for having performed a tort.)
(2) In addition to the social sense of ethics concerning the family relation as a whole, application of reproductive medical technology has serious effects on relations among relatives. What is considered unethical concerning the application of reproductive medical technology varies depending on countries and also has changed over time.
The authors would like to take artificial abortion as an example, since among reproductive-related matters, artificial abortion has been most seriously discussed, although this is not related to a foundation of any relative relation. In Japan, the Eugenic Protection Law was established in 1948. Japan was the first country in the world to enact an artificial abortion-related law. The Law was intended to protect the health and life of the mother and to prevent birth of eugenically poor descendants (note that the Eugenic Protection Law was reformed into the Mother's Body Protection Act in 1996 at which the provisions prescribed from the eugenic point of view were eliminated). One reason for protecting the health and life of the mother is an "economic reason" and it is therefore considered that the crime of artificial abortion stipulated by the Penal Code does not exist in reality but in name only (refer to "Comment on the Crime of Artificial Abortion" in the book "Basic Law: Commentary on the revised Penal Code" authored by Toshio Sawanobori).
In the UK, the Abortion Act was established in 1967. This was followed by the establishment of similar laws in France and Sweden in 1975, and in Italy in 1978.
West Germany amended their Penal Code in 1974, according to which artificial abortion under certain conditions was not to be punished. However, the Federal Constitutional Court adjudicated that this amendment was unconstitutional in 1975. In light of this judgment of unconstitutionality, the drafted Penal Code was separately examined and established in 1976. Along with the unification of Germany, the Pregnant Women and Family Support Act was established in 1992. Some members of the Federal Parliament filed a motion against the establishment of the Act and the Federal Constitutional Court again passed the judgment of unconstitutionality in 1993. Subsequent discussion between the ruling party and the opposition party about the bill has failed to lead to establishment of any new law (which was the situation as of 1995, according to "Overseas Information on Laws (in Germany)" authored by Junko Saitoh, Juristo No. 1067).
In the US, the Supreme Court of the United States adjudicated in 1973 that the provisions for the crime of artificial abortion in the state of Texas were against the constitution and accepted artificial abortion (Roe's judgment). Subsequently, there occurred in the US active discussions including possible amendments of the Constitution, although the Federal Congress did not call for legislation regarding artificial abortion. Under these circumstances, the Supreme Court of the United States has shown their stand that they will not change the basis of Roe's judgment in 1973, as indicated by Webster's judgment in 1989 and by Cathy's judgment in 1992, but made some judgments to accept regulation of artificial abortion according to state laws.
One of the issues attracting our attention in the future may be marriages between homosexuals, which is not related to reproductive medical technology but has already been a hot issue in European and North American countries. This is an example which cannot be handled according to traditional standards of ethics and represents the possibly of a changing social order in the near future, to which society will show different ways of acceptance from the current attitude. In Japan, the Civil Code uses terms indicating separation between the sexes, e.g. married couple, husband, and wife, and the Marriage Act and the Parent-and-Child Act are based on the assumption that a male husband and a female wife has a child (or children). Accordingly, it is considered in Japan that a marriage between homosexuals constitutes a hindrance to marriage according to the currently effective laws. Marriage of persons of the same sex is accepted, however, in Sweden where the Law Concerning Marriage of Persons of the Same Sex was established in 1995, and also in Denmark, Norway, and Iceland (refer to "The Way the Sexes should be" authored by Masayuki Tanamura, Jurisuto No. 1126). In Japan also, there was a precedent case indicating the necessity of protecting the rights and interests of homosexuals: the High Courts of Tokyo supported the judgment made by the Tokyo District Court that the act of Tokyo's Youth Hostel which forbade homosexuals to use the Hostel's institution by applying their rules of forbidding men and women to use the same room, was illegal. The judgment made by the High Courts of Tokyo further indicated that the disapproval by the Tokyo Municipal Education Commission was illegal since it unreasonably restricted the right of use by homosexuals and stated that the administrative authority is required to fully protect the rights and interests of homosexuals (refer to the same report above by Masayuki Tanamura).
On the other hand, Japan has also attained the stage where sex-change operations are performed in medical practice. We have to admit that there exist problems in handling marriage of such patients, i.e. individuals who become women after a sex-change operation, in connection with family registration.
The trends in regulations regarding advanced reproductive science and technology including in vitro fertilization between non-spouses and surrogacy have already been described in Section 2. Subtle differences are noted among countries in terms of the scope prohibited by laws and the reasons for prohibition. It should be considered that this is because each country has its own standards, on the basis of which unethical judgment is made. From now on, the authors will discuss cloning technology and try to determine if problems caused by application of cloning technology are within the range of differences among countries in terms of ethical standards that we have already discussed in the previous sections, or are universal.
2. Framework for Changes in the Social Order (Legal Fiction for Genetic Relation and Family Relation)
(1) When evaluating changes over time in the family relation which require amendments or interpretation of the Family Act, we may consider that these changes in the family relation do not bring about totally new human relations but that these changes represent legal fiction based on traditional, or different, human relations, or equalization in power or transition in power. The family relation is basically conservative and when looking back on the history of family relation, there was no event of creating totally new human relations. The new family relation, which suffers from some confusions due to changes in social circumstances, however, is treated as legal fiction of the traditional family relation and human relations and therefore, has not experienced fundamental inconsistencies.
Adoption is evidently a legal fiction of the relation of parents and their own child. Common-law marriage is a legal fiction of registered or lawful marriage and is currently given almost the same protection as that given to registered or lawful marriage from the legal point of view. The above described marriage of persons of the same sex accepted in foreign countries is not a newly created family relation but is based on the argument that the marriage of persons of the same sex should be given similar rights to those accepted for the traditional way of marriage. In Japan, the postwar status of the wife is equal to that of the husband, which can be regarded as legal fiction of the husband's status (i.e. equalization in power). Considering the fact that in the modern society, people are more and more oriented toward contract-based relation but on the other hand, some aspects of the society still require the traditional relation among relatives under which the family members build up the sense of family bonds regarding reproduction, supporting, and family togetherness, we may be able to assume that at least currently, no drastic changes will occur in the family relation and it is not unreasonable to base a nation's policies and investigations of the social order on this assumption.
As the authors have already discussed in the previous sections, the social sense of values and the social order experience substantial changes, which makes it even harder to reach an absolute conclusion that an act is right or wrong, or ethical or unethical. On the other hand, we also have to admit the absolute fact that the order based on the family relation constitutes part of the currently accepted sense of ethical values (e.g. prohibition of consanguineous marriage which will be discussed later). For these reasons, it is necessary for us to regard separations from the social order not as merely abstract concepts but as specific social phenomena. In this section, the authors try to evaluate how substantially the traditional family relation would be affected by reproductive medical technology, a totally new technology to humankind, using one methodology, i.e. "To what extent does interpretation through the use of legal fiction help evaluation of this issue?" Unlike an ordinary type of new social order, reproductive medical technology will provide reproductive environments that humankind has never before experienced. This is the first experience associated with advancements in science and technology. Careful considerations are therefore necessary in light of problems which would not have occurred in human relations without such technology. The authors would like to evaluate in particular the extent of social confusion and risk caused by cloning technology, as compared to other reproductive technologies, by looking at relations based on legal fiction. We consider that such evaluation may enable us to establish grounds for regulating application of cloning technology.
(2) From the viewpoints described above, we can compare what would be associated with application of new reproductive technologies. As an example, the authors will evaluate a new parent-and-child relation created by application of new reproductive technologies both from the biological (genetic) viewpoint and from the viewpoint of family laws (for which we follow interpretation of Japan's Civil Code for the purpose of evaluation in this section).
(i) In the case of {artificial insemination by husband (AIH) and in vitro fertilization between spouses}, the husband and the wife have their own child and there exists no problem from the genetic viewpoint nor the viewpoint of family laws.
(ii) In the case of {artificial insemination by donor (AID) and in vitro fertilization between non-spouses}, the genetic relation is that the wife is the mother of the child and the third individual is the father of the child. From the viewpoint of family laws, the birth of the child makes the wife become the mother and her husband is presumed to be the father of the child (assuming that the husband has given his prior consent to implementation of artificial insemination by a donor or in vitro fertilization and therefore, will not deny the legitimacy of the child). There exist inconsistencies between the genetic relation and the relation based on family laws. In reality, however, the following case occurs: a child is born between a wife and a third individual and after she gets married to her husband, they adopt the child. When the parent-and-child relation in this case is regarded as legal fiction of adoption, we can consider that the parent-and-child relation in this case is similar to the case when the parents have their own child, from the viewpoints of both genetic relation and family laws-based relation.
(iii) In the case of {surrogacy}, the genetic relation is that the wife is the mother of the child and the husband is the father of the child. From the viewpoint of family laws, the donor of a womb becomes the mother after giving birth to the child, but there is no father and the child is a non-legitimate child. If this situation is left to stand, then the husband, the wife and the child will not have any relation from the viewpoint of family laws. However, if the individuals concerned have reached prior agreement that the child to be born will be the child of the husband and the wife, then the husband and the wife adopt the child and from the viewpoint of family laws, they thus become the parents of the child. As a result of such agreement, there are no inconsistencies between the genetic relation and the family laws-based relation, although the child is not their own child but the adopted child. At present, however, these circumstances are not always handled by established laws: if the donor of a womb refuses to hand over the child, it is predicted that extremely complicated legal relations would occur.
Even if evaluation through the use of legal fiction reveals no inconsistencies between the genetic relation and the family laws based relation, it is possible to give political considerations to this issue according to conditions or national sentiment in a country. For example, it could be possible for a national government to judge that a surrogacy agreement is contrary to public policy or good morals.
{Note} Surrogate mothering, i.e. implantation of a fertilized egg into the womb of the woman, who has no genetic relation with the egg, is a new experience for humankind. However, the biological relation created by the surrogacy, e.g. the relation of the child his/herself and his/her genetic father and mother, and the relation of the child his/herself and the surrogate mother (who has no genetic relation with the child and therefore is the third individual for the child), is in no way different from the conventional relation among the father, the mother, and the third individual. In addition, surrogacy is not as a rule different from the special method of in vitro fertilization between non-spouses: obtain a matured ovum from a donor who does not suffer from infertility, allow the ovum and sperm obtained from a man who does not suffer from infertility to form an embryo, and implant the embryo into the womb of an infertile women (i.e. the man's wife) (note that this is one of the methods of donating embryos). The authors will therefore have no intention to discuss to what extent surrogacy has been explored as a technique itself. For the reader's information, both technologies are already lawful in the UK and at present, many children may have been born by these technologies.
(3) Discussed below is Creation of a Cloned Baby by the Methodology Using Legal Fiction.
(i) Genetic relation
First of all, as is generally discussed, the authors have some doubts about the idea that the donor of a somatic nucleus can be the father of the cloned baby. Genetically, the relation between the donor of a somatic nucleus and the cloned baby is similar to the relation between monozygotic twins. If someone attempts at building up a genetic relation between monozygotic twins which is similar to the relation between the donor of a nucleus and the cloned baby, using currently available technology, the following method may help create such genetic relation: freeze and store one embryo of monozygotic twins at the time of fertilization and allow the other embryo to grow; when the latter embryo develops and is born as a baby who further grows as a child, the frozen embryo is implanted back into the womb of the mother who gives birth to the baby; and there exist monozygotic twins who are different in age. In other words, their relation corresponds to one of biological siblings.
Secondly, the woman who gives birth to a baby takes a similar position to that of the donor of a womb in the above-described surrogacy and is not a genetic mother, since her ovum is used but she is not given a nucleus which has genetic information. Accordingly, the donor of a nucleus is not a genetic father and the donor of a womb is not a genetic mother. As is shown by the above-described example of monozygotic twins, the genetic father and mother are the father and mother of the donor of a nucleus.
Even though the relation between the donor of a nucleus and the cloned baby is considered similar to the relation between monozygotic twins, the requirements for monozygotic twins are that they are born simultaneously and exist as siblings. There is no such case, in reality however, of freezing and storing one embryo of monozygotic twins and implanting it again into the womb of the mother when the other embryo has developed, born as a baby and grows as a child, resulting in monozygotic twins who are different in age. Creation of a cloned baby will thus create a new biological relation which has never ever existed before.
(ii) Relation from the viewpoint of relatives laws
First of all, since creation of a cloned baby will create a new biological relation which has never existed before, there is no relation which represents legal fiction based on family laws. This is one conclusion.
Secondly, for the purpose of discussion, the authors will take it that the relation between the donor of a nucleus and the cloned baby is similar to the relation between monozygotic twins. In the case of monozygotic twins, their genetic father and mother decide on their own to have a child, although there are some accidental factors for them to have twins (note that for these accidental factors, we can consider that their father and mother decide on their own by selecting a negative option of not eliminating one of the embryos through the use of artificial abortion). Even if one of the embryos of monozygotic twins is to be frozen and stored, their genetic father and mother decides on their own to do so. On the other hand, when a cloned baby is produced using a somatic nucleus, the will of a genetically elder brother or sister who is born earlier determines the birth of his/her younger brother or sister (although this is conceptual). Creation of a child on the basis of the will of not his/her father and mother but a third individual may not be acceptable. (Usually, it is considered that having a child (i.e. the donor of a somatic nucleus) through conception belongs to the right of autonomy of father and mother.)
From the viewpoint of family laws, the donor of a womb who gives birth to a baby becomes the mother. If the donor of a somatic nucleus is the husband of the donor of a womb, he is presumed to be the father of the child, which constitutes the parent-and-child relation from the viewpoint of family laws. None of the family relations prescribed by the existing laws find any legal fiction which corresponds to the case in which genetic siblings constitute a parent-and-child relation from the viewpoint of family laws. (However, if the donor of a somatic nucleus is not the husband of the donor of a womb, he is not the father of the child and is not allowed to acknowledge paternity of the child, but he could adopt the child. In Japan, there can be a case in which a boy/girl is adopted as the child of his/her elder brother/sister.)
If the relation of siblings prescribed by the family laws applies to the relation between the donor of a nucleus and the cloned child, then it is possible that various rights and obligations may be retrospectively changed. For example, there may be an argument that for inheritance after death of the genetic father and mother, the cloned child could claim retrospectively the portion of assets he/she should inherit from what the donor of the nucleus has inherited. In any event, creation of a cloned baby will bring about totally new factors to the social order from the viewpoints of properties laws and family laws.
(4) As discussed in the previous section, creation of a cloned baby does not correspond to any of the legal fictions based on the currently existing family laws but will create totally new human relations, leading to dramatic changes in the existing social relation. Even as compared to in vitro fertilization between non-spouses and surrogacy, creation of a cloned baby will have a substantial impact on the social order. It is desirable as a matter of course that legal regulations on the entire reproductive medicine field be fully discussed in Japan. Nevertheless, the authors consider that we have reasonable grounds for regulating technologies or related matters involved in creation of a cloned baby in particular.
(5) In connection with the above-described issue of creating a cloned baby, special considerations should be given to the cases described below.
(i) A case in which a cloned baby is produced using the somatic cells derived from a child when his/her parents lost the child due to death
This case may occur in particular when one of the parents (e.g. father) has already died and the child who subsequently died was the only child: the remaining parent (e.g. mother) wants to have a cloned baby using her ovum and womb. This mother's desire is understandable when considering her feeling and no individual will exist who has the identical gene to the cloned baby to be born. For these reasons, the above-described confusions are less likely to occur. However, none of the parents have the right of manipulating the genes of their child who died, without consulting the child and in addition, another order, that is, the currently accepted social order regarding death, will be confused. Accordingly, the case is considered inappropriate. (The authors have described in the previous section (2) that "it is considered that having a child (i.e. the donor of a somatic nucleus) through conception belongs to the right of autonomy of father and mother." We also should consider that the holder of a somatic nucleus (i.e. the child who died) has the right of preventing creation of a cloned baby derived from him/herself as a variation of the autonomy which is involved in his/her personal exclusiveness.)
(ii) A case in which the father and mother of the donor of a nucleus agree to creation of a cloned baby
When the father and mother of the donor of a nucleus, who are genetic father and mother, agree to creation of a cloned baby, the above-described confusions may be avoided and it is therefore difficult to make an immediate judgment that this case is not appropriate from the viewpoint of social order. This case should be handled in a similar manner to that given to a case in which one embryo of monozygotic twins (or dizygotic twins) is frozen and stored (note that this case is more likely to occur than the previous case since substantial quantities of excess embryos are produced upon in vitro fertilization).
(iii) Creation of monozygotic twins using naturally fertilized eggs, embryos and fetuses
In this case, the wife who is pregnant and his husband manipulate a fertilized egg and subsequent embryo according to the natural process in order to create monozygotic twins by the use of nuclear transplantation or any other relevant techniques. In this case, it is evident that during its natural process to form an individual, the life and body of the fetus (i.e. the fetus which should be formed through development and growth of a fertilized egg and subsequent embryo) may be damaged. This act will not be beneficial to the embryo since the embryo may be damaged one-sidedly, and therefore, is not accepted. As described in case (i), the holder of a somatic nucleus (which is the fetus in this case) has the right of preventing creation of a cloned baby derived from him/herself as a variation of the autonomy which is involved in his/her personal exclusiveness. It should be considered that as far as no consent is obtained from the holder of a somatic nucleus, even his/her parents are not allowed to create monozygotic twins using the somatic nucleus.
3. Significance of Cloning Technology
Finally, the authors would like to investigate the significance of creating a cloned baby as a measure to cope with infertility. As described previously, there are other methods available for handling infertility, such as artificial insemination and in vitro fertilization. When pregnancy is regarded as an act to allow eggs and sperm to unite to form new genes, to allow these genes to divide and differentiate within the fertilized eggs to form an embryo, and to bring about the birth of a baby, medical practices intended to eliminate obstacles to this act and help achieve its objective are therapies for infertility. Artificial insemination and in vitro fertilization mentioned above all satisfy these requirements for the infertility therapy. When creating a cloned baby, however, there is no fertilization between an egg and sperm. Creating cloned babies is therefore not an infertility therapy to eliminate obstacles in pregnancy but is an act of increasing individuals in number which, again, is a totally new experience for humankind. The authors consider that even if cloning technology is prohibited, such prohibition will not damage the right of undergoing medical practice. We also would like to mention here that in the filed of stock-breeding, cloning technology is understood as one of the technologies to develop new breeds of animals, improve the quality of animals, and increase the number of animals.