Ars Vivendi Journal No.5 (August 2013): 25-41

Japanese Baby Hatches and Unmarried Mothers/Children
Born Out of Wedlock - A Comparison with German
Babyklappen and American Safe Haven Laws.
Kashimi Yoshida* (translated by Robert Chapeskie)*Graduate School of Core Ethics and Frontier Sciences, Ritsumeikan University, Kyoto, Japan
Introduction: The issues surrounding baby hatches
Appalling incidents in which newborn infants die after being abandoned in public bathrooms
or garbage bins continue to occur. Those that are discovered are said to comprise only a small partof the total number of such cases, and policies are needed to prevent this worst-case outcome
befalling women who become pregnant unintentionally and their children. The baby hatch program“Konotori no yurikago [stork’s cradle]” run by Jikei Hospital in Kumamoto Prefecture was created
to deal with these cases of infant abandonment/infanticide that continue to occur even today.
Similar programs exist mainly in Europe and America, including Germany’s “Babyklappen,” asystem similar to the Japanese baby hatch and which served as its model, Italy’s “culla per la vita,”
France’s anonymous childbirth system, and America’s “Safe Haven laws.” Systems that allow
parents to give up their infants anonymously have been criticized on the basis of concerns about
promoting the shirking of parental responsibility and issues related to human rights such as theright of an individual to know his or her origins. In every country these systems have been
controversial and their pros and cons have been debated. The reason that these systems havenevertheless been adopted and continue to exist in Europe and America, however, is that they havebeen seen as having a role to play in the social safety net of their respective societies.
So in what sorts of circumstances are systems like baby hatches used? When a woman becomes
pregnant unintentionally, she first has to decide whether or not to give birth, and if she decides not
to give birth she will have an abortion. If she decides to give birth, she must then decide whether or
not to raise the child. When raising a child, several situations are possible: a legal marriage, acommon-law marriage, a single mother, or a single father. Adoption is an option when a woman
gives birth but cannot raise her child. Systems such as anonymous birthing programs andBabyklappen that allow mothers to anonymously relinquish all parental rights have been put inplace for cases in which none of these options are chosen. These sorts of systems for anonymously
waiving parental rights function as a final safety net within the overlapping social systems thatserve to prevent infanticide.
Japan’s baby hatch is said to have been modeled on Babyklappen, but if we consider the entire
process from pregnancy, including methods of birth control, to a woman ultimately going to a baby
hatch, there are differences between Japan and other countries when it comes to the systems thathave been put in place and the lifestyles that a pregnant woman or expectant couple can choose.
These systems can be said to be the same insofar as they were all created because of infant
abandonment/infanticide incidents, but we must keep in mind the different backgroundcircumstances present in each culture. This paper will consider, through a comparison withGerman Babyklappen and American Safe Haven laws, what issues have been raised by theappearance of baby hatches in Japanese society. I will not debate the pros and cons of baby hatches
but rather consider the options that should provide alternatives to baby hatches in Japan and how
they function/fail to function.

1. The creation and use of the Japanese baby hatch

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Under what circumstances and with what intentions was the baby hatch created in Japan?
According to Jikei Hospital’s website, their model was German Babyklappen. Babyklappen are
maintained at over seventy locations within Germany, and each year they receive approximately
forty children. Jikei Hospital director Taiji Hasuda visited Germany in 2004 and used what heobserved in his own hospital. Hasuda has talked about the social circumstances in Japan relating
to the creation of baby hatches, touching in particular on the fact that in Kumamoto Prefecturealone there were three incidents in three years in which the bodies of newborn infants who had
been abandoned were discovered, and “an incident in which an unemployed eighteen-year-old girlkilled her female infant immediately after giving birth and buried her in the yard, and an
appalling incident in which a twenty-one-year-old trade school student was sentenced to six years
in prison after giving birth in a pit-style toilet and suffocating her newborn infant.” Statistics suchas the number of murders involving parents and children and the number ofconsultations/complaints involving child abuse and child abuse deaths have also raised concerns
about the possibility of infant abandonment increasing in the future. Making repeated reference tothese “appalling incidents” involving young women, Hasuda describes the intentions behind thecreation of the baby hatch as follows:
Wasn’t there something we could do to save these precious lives given to us by God? Couldn’t
we also save the mothers who gave birth to these children? I was troubled by these thoughts,
and, thinking that both children and mothers could be saved if, like in Germany, there were aplace where children could be deposited as a last resort when their mothers felt unable toraise them, I decided to set up this kind of facility at my hospital.
The resultant baby hatch became operational on May 10th, 2007, and the surprise at the news thatthe child left on the first day was three years old is still fresh in the public mind. This fact wasenough to increase criticism of the baby hatch on the grounds that it would encourage childabandonment. The Yomiuri newspaper reported on these events as follows:
The hospital started operating the baby hatch at noon on the 10th. According to those
involved, the male child was dropped off around two or three hours later. Instead of his name,he said, “I was put in (the baby hatch) by my father.” According to his story, he seemed tohave been brought there from outside of Kumamoto Prefecture. His health was good and there
was nothing to indicate his identity. The response of the prefectural police was to establish theboy’s identity and ask his legal guardian about the relevant circumstances. On the 15th,
hospital director Hasuda stated, “whether it is true or not, as a healthcare provider I cannot
comment.” On April 5th Kumamoto city, which had authorized the creation of the baby hatch,stated “our position is to protect the human rights of children on the basis of child welfare
laws and municipal information disclosure ordinances. We cannot make any comment,
including the confirmation of whether or not this incident occurred.” (Yomiuri Shinbun, May
15th, 2007).
While neither the hospital nor Kumamoto city made this information public, the media
reported the number and gender of children who had been deposited. Most of these reports
disclosed the time the child was left in the hatch and his or her health condition, and passed
judgment on whether or not the parent or parents in question were criminally liable. Baby hatches
have been referred to as “baby posts” and criticized for encouraging parental neglect and childabandonment.
Among these inflammatory reports, information on the use of the baby hatch was first formallypresented a year and four months after the hatch had become operational. A baby hatch study
committee (Shukutoku University Professor Reiho Kashiwame et al.) was convened by Kumamoto
Prefecture to examine Jikei Hospital’s baby hatch, and an interim report by this committee wassubmitted on August 8th, 2008. It was reported that in the period between May 10th, 2007 andMarch 31st, 2008 a total of seventeen children (thirteen boys/four girls, fourteen newborns/two
infants/one small child) were deposited, and information about the parents’ circumstances wasgiven in the ten cases in which their place of residence had become known (Kumamotoken

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shoushika taisaku ka [Kumamoto prefecture low-birthrate counter-measure department] 2008.)
According to this report, all of the parental residences that had become known were outside ofKumamoto Prefecture, and the ages of the mothers were as follows: 10% were in their teens, 30%
were in their twenties, and 60% were in their thirties and forties. Regarding the mothers’
circumstances, no instances of unmarried mothers were confirmed; 60% were married and 40%
were single parents. In 90% of cases the deposited children had at least one sibling.
Regarding the question of who brought the child to the hatch, in some cases the mother cameby herself, in others a woman and a man came together, and in others children were dropped off by
their grandparents. There were cases in which the child’s siblings had been put into state carebecause of parenting problems, cases in which the local child counseling center in the parents’place of residence had been involved, and multiple cases in which parents had sought help from achild welfare office as a last resort before turning to the baby hatch. The report also revealed that
there were cases in which children of foreigners and children with disabilities had been deposited.
The headline of an article on this report read “Mothers who left children in the baby post: 60%
in their 30s/40s” (Yomiuri Shinbun, August 9th, 2008), and it noted the differences between thereality of those making use of the baby hatch and what had been expected when it was created. But
the circumstances of the people using the baby hatch in the ten cases in which their place ofresidence could be established do not necessarily reflect those of all users of this service, and the
proportion of the remaining seven cases that involved mothers in their teens/twenties ormarried/unmarried women remains unknown. We can only speculate about how many of thoseseven cases involved children of the sort the baby hatch was created to save from “appallingincidents.”
With the release of this report the shock and overheated media coverage of the baby hatch
program subsided. Then on May 25th, 2009, two years after the baby hatch had first begun
operating, it was revealed that Kumamoto City had received twenty-five children through thisfacility during fiscal year 2008. This was an increase of eight over the hatch’s first fiscal year ofoperation that had begun in May of 2007 and ended in March of 2008, and the total number ofchildren received up to that point was forty-two. Divided by gender there were thirteen male andtwelve female children, and according to their ages as determined by notes left by their parents
and examinations by doctors there were twenty-one newborns less than one month old, threeinfants under one year old, and one not yet school-aged child. Two of these children required
medical treatment, but none of them showed signs of abuse. Regarding the current operating
practices of the baby hatch, a special committee established by the municipal government inspects
its status approximately every three months, and so far has found no legal or child safety issues.
A prefectural council of experts has also been examining social problems and issues to be addressed
and is now preparing a final report to be released this autumn.

2. Babyklappen and immigration issues
German Babyklappen are often cited as a precedent for the Japanese baby hatch andcompared with the system implemented in Japan. The existence of “abandoned baby posts” and“abandoned baby boxes” in Germany had attracted attention in Japan even before the Japanese
baby hatch became operational in 2007 (Asahi Shimbun, January 30, 2002, Yomiuri Shinbun, July
15, 2003). According to Kyoko Sakamoto (2008), who has been conducting ongoing research onthem, Babyklappen were created by a catholic women’s support group (Donum Vitae in Bayerne.V.) in the small town of Amberg in the German state of Bavaria. They were part of the “Moses
Projekt,” a program created to help unmarried pregnant women, single mothers and their children,
all of whom occupy positions of weakness and hardship within society, but after several years inwhich the number of users was zero they were shut down. The following year (2000), however,SterniPark e.V. opened a Babyklappen, and this organization continues to engage in vigorous
activism including media campaigns and other initiatives. There are currently close to eighty
Babyklappen in Germany, and they receive a total of approximately forty children per year.
Anonymous childbirth is something that is often discussed in relation to Babyklappen. In bothcases the child is treated as “abandoned,” but anonymous birthing has the added dimension of a27

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system to prevent women undergoing the dangers of childbirth without the assistance of medical
professionals. Against a backdrop of abortion restrictions and child abandonment/infanticide
problems in France, this system was established in 1941 to allow women to give birth anonymously
and continues to exist today (Nishi 2001). According to Sakamoto (2008), even in Germany where
there are Babyklappen, in the north-eastern states many hospitals allow for anonymous birthing
and all births are carried out in general hospitals or university hospitals. The problematic natureof anonymous childbirth and Babyklappen concerning the right to know one’s origins had attracted
attention in the legal field and other disciplines before the creation of the first baby hatch (see, forexample, Tokotani 2003). Both Babyklappen and anonymous childbirth have been discussed aspart of the current debate over baby hatches in Japan.
The purpose of Babyklappen is to protect children, and also to prevent women fromcommitting criminal acts of infanticide and child abandonment. These aims are shared by theJapanese baby hatch, but the social circumstances underlying the two approaches differ. A survey
conducted by the state of Hamburg found that in Germany women in circumstances so harsh they
have no choice but to give up their children fall into the following categories: illegal immigrants
from other countries, drug addicts, victims of sexual crimes or domestic violence, and young womenin their teens (Sato 2004). In other words, Babyklappen are positioned as an emergency relief
system for women who cannot access state services, such as illegal immigrants and drug addicts,
and women who want to keep their pregnancy a secret from even close family members, such as
victims of sexual crimes or domestic violence and young women in their teens.
Regarding Babyklappen, Midori Ochi (2008) raises the deepening immigration problems inGermany as the social backdrop against which this phenomenon has arisen. Germany is one of theleading countries in Europe when it comes to immigration. According to a small-scale national
census conducted in 2005 there were approximately 15,300,000 immigrant residents comprising
18.6% of the total population. 7,300,000 of these individuals (8.9% of the total population) had
German citizenship, while 8,000,000 (9.7% of the population) did not. Immigrant residents madeup 27.2% of the population between the ages of two and twenty-five (6,000,000 individuals), and if
only children under six years of age are counted immigrants comprised one third of the total
population. The country with the largest number of emigrants to Germany is Turkey, and a large
number of immigrants also come from the former Yugoslavia, the former Soviet Union, Poland, andItaly. A survey in the state of Hamburg has also indicated that in the case of immigrants who arein the country illegally anonymous childbirth systems and Babyklappen are used because these
individuals are uninsured, fear deportation, and want to avoid dealing with the authorities.
It has been asserted (Sato 2004) that being “unmarried” is not given as a reason for childabandonment in Germany because children born out of wedlock are socially accepted as recipientsof social welfare. In today’s Germany nearly one third of all children are born outside of marriage.
This is the result of factors related to marriage law such as an increase in common-law marriages,
the absence of legal concepts of “legitimacy” concerning issues like inheritance, and the provision ofadequate public support to women raising children as single mothers. It can indeed be said that asociety in which it is easy to raise a child as a single mother is a society in which it is easy to givebirth to a child outside of marriage. But this does not provide a sufficient explanation of why
women who want to give up their children and avoid becoming single mothers do not kill orabandon their infants. This explanation is given by the existence in Germany of other social
systems, in addition to Babyklappen, that can be utilized by women who become pregnant
unintentionally.
In the discourse surrounding baby hatches in Japan up to this point, there has been little
discussion of the fact that in Germany “adoption” has been set up as an option to be utilized before
Babyklappen and anonymous birthing systems. According to paragraphs 218 and 219 of theGerman penal code, women must receive a consultation with a non-doctor professional before
getting an abortion. German abortion counseling centers can conduct consultations anonymously if
the woman requests it, refer her to marriage/family counseling centers or organizations thatprovide support to young or single mothers, and act as intermediaries with adoption agencies. In
Germany, when a woman becomes pregnant unintentionally she is presented with adoption, which
separates giving birth from raising the child, along with abortion and becoming a single mother as
the options available to her.

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According to reports by Yukiko Takahashi (2001, 2007), the number of children given up for
adoption has fallen in response to the widespread use of oral contraceptives, the normalization ofcommon-law marriage, the abolition of legal discrimination against children born out of wedlock,and the expansion of support for single parent families. In 2005, however, a total of 2,170 children
were adopted (excluding step-children), and 771 children have been provisionally registered for
adoption. The ratio of candidates for adoption to parents looking to adopt is 1:12, and just as in the
United States, a country well known for adoption, and France, in Germany too the number ofcandidates for adoption is insufficient and in recent years the adoption of children from othercountries has been increasing. Adoptions can be arranged by public child assistance agencies andstate-sanctioned private adoption service agencies, support such as counseling for women withunwanted pregnancies is provided, and the overwhelming majority of parents who give theirchildren up for adoption are mothers in their teens. Adoption can be seen as an important part ofchild welfare services in Germany, and at the same time its function as a social welfare service forwomen with unplanned pregnancies has also been established. Given that several options such as
adoption exist for women who become pregnant unintentionally, the tension between the necessityof Babyklappen in the context of problems related to immigration and the problematic nature of
Babyklappen when it comes to issues such as an individual’s right to know his or her origins has
thus been debated within Germany.

3. Safe Haven laws and abortion issues
Even in America, which is thought of as a major adoption nation and is also a country in which
the number of unmarried single mothers is increasing, there is a system that allows children to begiven up anonymously: “Safe Haven laws.” Facing an increase in incidents of newborn infants
being abandoned, in 1999 the state of Texas passed a “Baby Moses law.” Through this law it
became possible for parents in this state to anonymously relinquish their parental rights withinsixty days of a child’s birth. This system’s distinctive feature is that no special boxes are set up;
children can be entrusted to any hospital or emergency medicine center or to an employee of an
authorized child protection organization. Those receiving the child are under no obligation todetain or pursue the parents unless there are signs of child abuse or neglect. Parents are notrequired to provide any personal information, but they are asked to fill out forms in order to leave
information relevant to the child such as medical histories. Children who are candidates for
adoption enter foster care on a temporary basis, and their adoption process proceeds after waiting
for their biological parents’ parental rights to automatically expire.
Texas’ Baby Moses law then spread throughout the United States. In the following year, 2000,
fourteen states including California, Florida, Michigan and Kansas adopted Safe Haven laws, andin 2001 a further seventeen states followed suit. In 2002 then President George W. Bush signed
legislation authorizing funding, publicity, training, and assistance for Safe Haven programs. By
2006 forty-seven American states and Puerto Rico had established Safe Haven programs, and theonly states that had not yet passed Safe Haven laws were Hawaii, Alaska, Nebraska, and theDistrict of Columbia.
Hawaiian Governor Linda Lingle vetoed a Safe Haven bill in 2003. Her decision was based on
the fact that in Hawaii extended family are generally recognized as part of core families, and also
out of concern that, as a practice of open adoption [1] called “Hanai” was already functioning wellin Hawaii, this law could have had undesirable effects on the existing support system for womenwith unplanned pregnancies (Lingle 2003). Lingle also pointed to the fact that experts within
America were becoming critical of Safe Haven laws.
At present, all fifty states, including Hawaii, have adopted Safe Haven laws. The content ofthese laws differs state by state. According to materials bringing together data on the laws in eachstate as of 2007, in fifteen states the period during which infants can be accepted is within seventytwo hours of birth, in fourteen states it is within one month, and in other states the age limit is set
at five days, seven days, fourteen days, forty-five days, sixty days, ninety days, and one year.
Regarding the institutions that can function as safe havens, eight states stipulate that only
hospitals can play this role while other states designate emergency medical services, police, and29

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fire departments as safe havens. Four states also authorize emergency medical technicians to pickup children after receiving notification, and in Puerto Rico churches functioning as safe havens is
accepted.
Nebraska passed a Safe Haven law in 2008, but as it did not limit the age of children that
could be deposited, a state of affairs arose in which older children, including teenagers, had to be
accepted under this legislation. In 2008 more than thirty children were left in safe havens in
Nebraska, but none of them were infants; nearly half were teenagers and several had even beenbrought from outside of the state. Nebraska then imposed a new age limit of thirty days (USAtoday, November 14, 2008; New York Times, November 23, 2008).
Critical views of Safe Haven laws exist and have not been limited to the problem in Nebraska.
In particular, adoption researcher Adam Pertman has reported that the establishment of Safe
Haven laws cannot be said to have caused a reduction in incidents of newborn abandonment andinfanticide, and, citing the fact that the effectiveness of these laws cannot be confirmed because
counseling of those making use of them is not carried out, remains skeptical of their impact(Pertman and Deoudes 2008).
German and Japanese baby hatches have no legal grounding, and continue to be operated
privately with the government responding after the fact amidst controversy over whether or notthey should exist. In America, however, similar systems have been established under state law.
The fact that Safe Haven programs have spread throughout the entire country within just a few
years is also striking. The deeply rooted problem of abortion in American society can be thought ofas underlying this rapid expansion.
Carol Sanger (2006) writes as follows concerning Safe Haven laws:...these laws are properly understood within a larger political culture, one increasingly
organized around the protection of unborn life, and that identifies itself as the “culture of life.”
By connecting infant life to unborn life and infanticide to abortion, Safe Haven laws work
subtly to promote the political goal of the culture of life: the reversal of Roe v. Wade. The laws’
primary achievements may therefore be less criminological than cultural.
Sanger examines the process by which Safe Haven laws were passed in the states, and suggeststhat the rhetoric and politics surrounding the issue of abortion paved the way for these laws to be
adopted throughout the entire country in a short period of time. She also points out that legislativeand social mechanisms have taken unmarried women’s pregnancies/abortions off the table, andthis in turn causes young women to experience a psychological crisis that can lead to themabandoning their newborn babies.
Miho Ogino (2001) has conducted a detailed study of the conflict over abortion in America andthe radical steps taken by the anti-abortion side. The 1971-1972 United States Supreme Court trial
in the case of Roe versus Wade involved the questioning, on the basis of privacy rights, of theconstitutionality of an 1875 Texas state law prohibiting abortion except in cases where the life of
the mother was in danger. The verdict was unexpectedly liberal: by a seven to two majority the
court ruled that a woman’s right to choose to have an abortion is protected by the right to privacy
guaranteed in the constitution. Following the Roe v. Wade decision in 1973, abortion became ahotly debated topic and began to be an important point of contention in politics, includingpresidential elections. This conflict between the anti-abortion side and abortion defenders was not
limited to verbal debate; with anti-abortion activists committing terrorist attacks against abortion
clinics, harassing women seeking abortions, and committing acts of violence including the murderof doctors who performed abortions, this struggle within American society escalated to the pointthat it came to be referred to as a “twenty-five-year war” and a “new civil war.”
Even quite recently, on May 31st, 2009 there was an incident in which an obstetrician who
performed abortions was shot and killed in a church in Wichita, Kansas. Dr. George Tiller, the man
who died, was one of the few doctors who performed late-term abortions, and he had already been
shot once before near his clinic sixteen years earlier. In the state of Kansas third trimester
abortions are permitted in certain cases such as those in which “permanent damage will be done to30

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the woman’s body.” As a result pregnant women from all over the country visited Dr. Tiller’s clinic.
After his shooting, his clinic was closed by his family (Mainichi Shinbun, July 16th, 2009).
With both performing and receiving abortions having been described as “risking one’s life,” inAmerica abortions cannot be obtained with ease. To begin with, doctors/hospitals that perform
abortions are few in number, and they are supported by volunteer activities through familyplanning organizations such as Planned Parenthood. Safe Haven laws were passed in America
within this kind of social and political context concerning abortion.

4. Issues surrounding unmarried mothers/children born out of wedlock in Japan
German Babyklappen and American Safe Haven laws arose against a backdrop of immigration
and abortion issues respectively. So what kind of social backdrop exists behind Japanese baby
hatches? Until now the “unmarried” factor has been thought of as lying at the core of newborn
infant abandonment and infanticide in Japan. Here I will address some of the issues surrounding
unmarried mothers and children born out of wedlock in Japan.
In most countries today, including Germany and America, legal discrimination againstchildren born out of wedlock has been abolished. As a result of the fact that within the Christiancultural sphere sexually repressive norms exist and marriage contracts had been thought of as
sacred, the legal and social sanctions imposed on unmarried mothers and children born out of
wedlock were powerful. The existence of “unmarried mothers’ homes” can be seen as indicative of
the fact that discrimination was intense enough to require the protection of unmarried pregnant
women. And children born out of wedlock were treated coldly as “fruits of sin” and children who“must be made to pay for the sins of their parents.” In the twentieth century, however, children’s
rights began to be seen as important, and discrimination on the basis of a child’s birth has beenprohibited by the European Convention on Human Rights, the European Convention on the Statusof Children Born out of Wedlock, and the Convention on the Rights of the Child. On the basis ofthese conventions, the abolition of discrimination against children born out of wedlock, centered inEurope, has been carried out in countries all over the world. It is said that today the only countries
that have inheritance laws that discriminate against children born out of wedlock are thePhilippines and Japan.
Addressing movements to reform civil law, Yoko Sakamoto (2008) points out the thoroughly
problematic nature of Japanese legitimacy presumption regulations, nationality laws
discriminatory towards children born out of wedlock, and civil laws that discriminate againstchildren born out of wedlock concerning inheritance. A concept of “legitimacy” exists in Japanese
civil law and social systems, and various forms of discrimination occur on the basis of whether or
not someone is a “legitimate” child. Article 900 (iv) in “Part 5 - Inheritance” of the Civil Code statesthat “the share in inheritance of a child out of wedlock shall be one half of the share in inheritanceof a child in wedlock,” and the child of a couple who are not legally married can only receive half ofwhat a child of a legally married couple would inherit. Regarding this law, while the Tokyo District
Court ruled in 1993 that discrimination against illegitimate children violates the constitution, a1995 Supreme Court decision did not find it unconstitutional. The district court’s ruling was alandmark decision, however, and cited not only discrimination in terms of inheritance but also
other kinds of social discrimination suffered by children born out of wedlock.
In the Civil Code of the Meiji Period, when a man produced a child with a woman who was not
his wife, “shoshi,” illegitimate children recognized by their father, were distinguished from“shiseishi,” illegitimate children who were not recognized. If their father had no children with hiswife, “shoshi” could inherit his estate, and in the order of inheritance a male “shoshi” superseded alegitimate female child. Because a wife’s rank was low when it came to inheritance and her rights
concerning her husband’s property were not legally guaranteed, there are many ways in which theregulations that discriminate against children born out of wedlock in the current civil code can bethought of as “protecting the wife’s position.” These regulations, part of the post-war reforms of thecivil code, are viewed as an attempt to balance “respect for legal marriage” and “protection ofillegitimate children.” Sakamoto points out, however, that children should not suffer disadvantages
because of the actions of their parents before they were born.

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Discrimination against children born out of wedlock is not only a problem when it comes toinheritance. As the movement to abolish discrimination against children born out of wedlock has
asserted (see, for example, Bunmei Sato (1984)), this discrimination extends to detailed aspects ofvarious social systems and services used in daily life such as family registers (koseki) and resident
cards. In the past family registers recorded children born inside marriage as “chounan [eldest son]”and “choujo [eldest daughter]” and children born outside marriage as “otoko [male]” and “onna[female].” “Chounan [eldest son]” and “choujo [eldest daughter]” were also used on resident cards
for children born inside of marriage, while children born out of wedlock were recorded only as “ko[child].” Activism and lawsuits aimed at abolishing discrimination in family registry and resident
card notation have been carried out on an ongoing basis, mainly by couples in common-law
marriages. As a result of these efforts, in 1994 the (no longer extant) Ministry of Home Affairs
issued a notice ordering that all parent-child relationships noted on resident cards be recorded
using “ko [child].” Ten years after this reform of the resident card notation, in 2004 a district court
decision found that “a notation which distinguishes children born out of wedlock is a violation ofprivacy rights,” and in the same year the Ministry of Justice conducted a reform of the family
register implementation ordinance which resulted in children born out of wedlock also being
recorded as “chounan [eldest son]” and “choujo [eldest daughter].”
The parents of children born out of wedlock include couples living in common-law marriages,
single mothers, and single fathers, but the movement to abolish discrimination against thesechildren in Japan has been carried out primarily by common-law couples. The movement to abolish
discrimination against children born out of wedlock began when the movement seeking to allow
married people to have different surnames expanded at the end of the 1980s, and questions began
to be raised when the children of couples who opted for common-law marriage in order to avoid
having to change their surnames were treated as children born out of wedlock. People living incommon-law marriages choose this lifestyle as a result of various beliefs and circumstances, andhave analyzed their own situation as follows: “it can also be said that parents of children born into
common law marriages have not experienced too severe discrimination in their daily lives to standup against unfair discrimination and take up the fight with the government as their adversary”(Ota 2004). Discrimination against children born out of wedlock in everyday life is much stronger
when it comes to single-parent families than common-law couples, and among single-parent
families it is the families of unmarried single mothers who are neither divorced nor widowed who
face the most severe discrimination. From the time these women become pregnant and give birth
as “unmarried mothers” they are faced with various difficult decisions while being exposed toprejudice and discrimination.
Just as discrimination against children born out of wedlock has arisen in issues concerning
inheritance and administrative procedure, discrimination against unmarried mothers can also beseen arising in various different areas. One example of this is the problematic nature of the system
concerning the recognition of children in Japan. Kyoko Yoshizumi (2004) compares the systems forestablishing paternity in Japan and Sweden. In the Japanese system, the will of the father is given
priority over the human rights of the child. While children are still minors, acknowledgment ofpaternity is easily accepted at any time by government offices without the consent of the mother orchild. If the mother or child wants to make the father acknowledge paternity, however, they mustlaunch a compulsory acknowledgement lawsuit in the courts and pay the cost of DNA testingthemselves. In this sense respect for the will of the mother and the right of a child to know his or
her father are not adequately guaranteed under the current circumstances in Japan.
In contrast to this state of affairs, in Sweden the mother’s consent is needed for the
acknowledgment of paternity, and a public organ, a social welfare committee, is involved in theprocess. From the perspective of the child’s human rights, confirming his or her father’s identity assoon as possible is seen as the duty of the local government; the social welfare committee is
responsible for searching out/investigating (gathering information, DNA testing) the father, and inprinciple this investigation must be conducted within one year of the child’s birth. In cases where aman does not respond to paternity confirmation, the social welfare committee or the mother canbring suit with the child as the plaintiff, or the social welfare committee can bring suit on its own.
As a child plaintiff has no income, all expenses such as DNA testing and court costs are covered
using public funds. The search for/investigation of a father is terminated in cases where obtaining

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necessary information about the father is impossible, cases where it is deemed impossible tomaintain a lawsuit in the courts, or cases in which, for reasons such as the father being a criminal
or a close relative of the mother, the search/investigation is terminated with her consent.
Yoshizumi (1992) also discusses the issue of the payment of childrearing costs after paternity
has been established. In Sweden it is legally established that a father’s responsibility for childsupport exists until his child reaches adulthood. When one parent is raising a child, the otherparent is obligated to send a legally established amount of money, and the fulfillment of thisobligation is rigorously enforced. If a child support payment is delayed, the same amount is paid by
the government on the basis of a child support advance payment system, and at the same time
reimbursement from the late support payer is aggressively pursued. In cases where an individual’s
economic circumstances are so bad that payment of child support becomes a hardship, however,these costs are born by the state.
In Japan, not only is it difficult to obtain acknowledgment and child support payments fromfathers, but unmarried mothers also tend to become isolated as a result of personal issues such as
opposition to their having a child on the part of their families, friends, and relatives. Prejudiceagainst unmarried pregnancy can also lead to problems concerning employment such as being fired
after returning from maternity leave and having difficulty finding a new job. And when it comes toraising the child, it has been pointed out (Matsumura 2004) that discrimination between
unmarried mothers and divorced/widowed mothers occurs in the administration of child rearing
allowance. The social, economic, and legal problems concerning unmarried mothers in Japan areserious, and when an unmarried pregnant woman decides to give birth and raise her child she
faces various hardships.
While life is difficult for Japan’s unmarried single mothers, there are no social/systemic
barriers to receiving an abortion. In Japan abortions are available up until the twenty-second weekof pregnancy, can be obtained at most hospitals and clinics, and women have no obligation toreceive counseling beforehand. Within this environment in which it is easy to obtain an abortion, it
may be that the lack of active support for unmarried single-mother families in the administrationof social services such as child rearing allowances is based on the premise that when an unmarried
woman becomes pregnant she will only give birth if she is able to raise the child on her own. It canthus be said that in Japan the system is such that most unmarried women who become pregnant
unintentionally have no choice but to obtain an abortion.
One point of reference regarding how women who terminate their pregnancy come to thisdecision is a survey of young women in their teens who had had an abortion that was conducted by
Japanese obstetricians in 2002 (91 facilities, 565 respondents). Regarding how they felt uponlearning they were pregnant, 32.6% responded “happy” and 68.1% “distressed.” The percentage
who responded “happy” increased with age, reaching 34.5% among nineteen-year-olds. In responseto the question of whether they had wanted to give birth, 39.3% answered “I wanted to give birth”
and 18.1% “I did not want to give birth,” with the percentage answering “I wanted to give birth”
increasing with age to 41.8% among nineteen-year-old women and a corresponding decrease in
those who answered “I did not want to give birth” to only 14.7% among these respondents.
Regarding reasons for choosing to have an abortion, the most common answer was “economic
reasons” at 67.7%, with “I am too young” at 63.7%, “I am not married” at 46.3%, “I am not confident
that I could raise a child” at 44.2%, “it would interfere with my studies” at 38.7%, and “parental
objections” at 27.3% comprising the rest of the top-ranking responses. In this survey the portion of
respondents who “wanted to give birth” approached forty percent, and attention must be paid tothis data when the use of adoption in cases of children born out of wedlock and to unmarriedmothers is considered.
As issues concerning the legal system make clear, Japan is a society in which life is difficult forchildren born out of wedlock, and at the same time there are also ways in which it is a society inwhich unmarried women cannot give birth. In countries that have abolished discrimination againstchildren born out of wedlock these children make up a larger portion of the total number of births;
in Sweden, for example, an early abolisher of this kind of discrimination, more than half of all
newborns, 56.6% in 2006, are children born out of wedlock (Sakamoto 2008). In France, wherediscrimination was completely abolished in 2005, the percentage of children born out of wedlock
surpassed 50% for the first time, reaching 50.5% in 2007. The ratio of children born out of wedlock

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Ars Vivendi Journal No.5 (August 2013): 25-41
has reached 38.5% in America (2006), and 29.3% in Germany (2006). These numbers indicate thatin these countries single mothers are increasing in number and common-law marriage is becoming
widespread. In contrast, the ratio of children born out of wedlock in Japan is an extremely low
2.1% (2006). In 1980 this ratio was 0.8%, and it is clear that social discrimination and prejudiceagainst children born out of wedlock and their mothers are still very deeply rooted.
There are presumably major differences between what can be expected of a baby hatch system
in societies in which problems surrounding children born out of wedlock/unmarried mothers
remain deeply rooted and societies that have dealt with these issues. Before setting up baby
hatches in Japan it is necessary to realize a society in which a woman can live with her child as an
unmarried single mother.

5. The establishment and utilization of the special adoption system
One problem concerning the abortions of unmarried women is that in most cases, regardless ofwhether or not they “want to give birth,” the reason behind their decision to have an abortion is “I
cannot raise a child.” In cases where, as a result of various circumstances, a woman gives birth,either because she wanted to or because she had to, but now does not want or is unable to raise her
child, is there indeed no other option than for her to take her infant to a baby hatch? In considering
the issue of baby hatches in Japan, it is necessary to consider another important alternative in
addition to single motherhood and abortion: adoption systems.
In the debate over baby hatches, the special adoption system [2] is often presented as a childwelfare system to be utilized after a child is left at a baby hatch. In the case of German
Babyklappen and anonymous birthing systems, if the biological parents do not come forward
within an eight-week grace period the adoption process begins automatically. Under American Safe
Haven laws, children taken into care are put up for adoption through a similar process. According
to Yasuhiko Yuzawa (2007), however, children deposited in the baby hatch in Japan are entrusted
to an infant home by the notified children’s welfare center, and after two years or so are thenmoved to a foster home. Within the scope of the materials cited by Yuzawa, this was not thepreferred outcome of most of the women who gave birth to these children; these mothers would
rather have seen their children adopted by a suitable couple as quickly as possible. The special
adoption system is indeed inadequately employed following receipt of an infant through a baby
hatch. An important issue that must be discussed first, however, is that the special adoption
system does not function as a social welfare system targeting women who have become pregnant
unintentionally at the stage before a baby hatch is used.
In the 1970s and 1980s incidents of infants being discarded/infanticide caused a stir in theJapanese media. Reports on topics such as “coin-locker babies” and mother-child murder-suicides
appeared one after another, and the “collapse of motherhood” was mourned. In 1986 a “tenshi noyado [angels’ inn]” where children could be deposited anonymously was established in the town of
Ogo-machi, Gunma Prefecture, and approximately ten children were left there over a six-year
period. This facility was a forerunner of baby hatches. Around this time there was also
consideration of establishing a special adoption system with the aim of bringing together“unwanted children” and “couples desperate to have a child,” and this system was eventually
established in 1987. The number of cases it handles has declined steadily since immediately after
this system was introduced, however, and at present it is only around three hundred per year
(Supreme Court Secretariate). Most of these cases are adoptions of foster children by foster parents
that occurred in roughly the same numbers before this system was established, and this system is
not being utilized by the many people who would like to adopt who are assumed to exist in Japan.
Why is the special adoption system not functioning adequately as an alternative to baby hatches?
Regarding the actual usage of this system, Goodman (2000) points out that adoption is not able
to compete with abortion as an option for women who do not want a child because under theJapanese family register system birth/adoption records regarding even unmarried women are
made public, and in many cases the biological mother’s consent for adoption cannot be obtained
because of her family’s opposition. Also, according to Kikuchi (1998), under the current
circumstances in which a woman’s privacy regarding childbirth/adoption is not protected, there are34

Ars Vivendi Journal No.5 (August 2013): 25-41
children in institutions whose mothers have not registered their birth and thus do not have afamily register, and when it comes to these children the adoption process is difficult. Moreover, as
an additional problem concerning special adoption, a certain number of cases have been reported inwhich, foregoing the special adoption process, children have been placed with overseas adoptive
parents with large sums of money changing hands (Takakura 2006).
Research on the special adoption system has so far mainly occurred in the field of comparativelaw. In this context the special adoption system has been viewed as a child welfare-type adoption
system, and concrete improvements to this system have been discussed from this perspective.
Specifically, the necessity of modifying regulations concerning adoption arrangement andestablishing specialized adoption arrangement organs, protecting the privacy of biological mothers,
and introducing measures to deal with issues concerning the consent of biological parents andchildren without family registers in the context of adoption has been pointed out (Yuzawa 2001,
2007; Kikuchi 1998; Suzuki 1998).
Because adoption law in Europe and America was created with the aim of aiding orphans andchildren born out of wedlock amidst restrictions on abortion, consideration was given to theprotection of the biological mother’s privacy and the prevention of human trafficking. In particular,
the right of an adopted child to know his or her origins and attempts at open adoption have always
been pursued in the context of a relationship of tension with the necessity of protecting the privacyof biological mothers. The special adoption system emphasizes the rights of children to know their
origins on the basis of the fact that childbirth/adoption are recorded on the mother’s family register
which is accessible to a person other than the adoptee as well, and this differs from the discussionin Europe and America which is premised on the necessity of protecting the privacy of biologicalmothers. So how did this difference between adoption systems in Europe and America and thespecial adoption system in Japan arise? In what follows I will give an overview of the process bywhich the special adoption system was established [3].
The idea of “special adoption” was first presented by the Legislative Council in 1959 (Ministryof Justice Civil Affairs Bureau 1959). Here is an excerpt from that proposal:
27 Consider the pros and cons of establishing a “special adoption” system in addition tonormal adoption along the following lines:(a) Children to be adopted via special adoption will be limited to infants under a certain age.
(b) Children adopted via special adoption will be treated as the biological children of theiradoptive parents in the context of all legal relationships, and will be recorded as theiradoptive parents’ biological children on their family register.
(c) Severing of the adoptive relationship by the adoptive parents will not be permitted.
Head of the Legislative Council Wagatsuma (1959) stated, “the necessity and reasonableness oftreating adoptive children as biological children, both when it comes to legal relationships and tonotation on the family register, were raised as demands regarding this system on the basis of theexistence of a custom of falsifying birth records and the unreasonableness of adoptive parents
being allowed to severe the adoptive relationship to serve their own interests.” In other words, thepurpose of the system conceived in 1959 was not welfare but the suppression of illegal birthnotifications regarding family registers. The content of the law proposed at this time involved
simply making notation on family registers and legal relationships the same for adopted children
as they are for biological children, and neither laws concerning the arrangement of adoption andthe organs that perform this arrangement nor the protection of the privacy of biological mothers
were addressed. This 1959 proposal, however, was kept on the shelf for more than twenty years.
The impetus behind the legal establishment of the special adoption system in Japan wasdisclosure of 100 illegal adoption arrangements by an obstetrician in 1973 and became known as
Dr. Kikuta’s adoption movement. Noboru Kikuta, an obstetrician, recommended delivery rather
than abortion to mothers who were not able to raise a child and placed their infants with infertile
couples, and his movement led to calls for a “birth exception law” to systematize this process.
Kikuta believed, on the basis of personal experience, that women could give up the idea of having
an abortion if their privacy rights regarding childbirth/adoption were protected, and publicized thefact that he had placed children with adoptive families (Kikuta 1979). Kikuta called for an

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adoption system in which the records of the biological mother’s having given birth and put a child
up for adoption would not be released to anyone other than the individuals directly involved, with
its use by women who would otherwise choose to have an abortion and unmarried women in dangerof abandoning/murdering their infants in mind. Kikuta’s movement attracted a lot of public andmedia attention along with incidents of child abandonment/infanticide such as those involving“coin-locker babies,” and “opinion papers regarding the passage of birth exception laws” wereadopted at the local government level in various regions throughout Japan. Through thismovement the existence of biological mothers who sought to have their childbirth records falsified
by the adoptive parents of their children was raised as an issue within the discourse on adoption.
This was a perspective that had not existed in 1959. Throughout the 1970s and 1980s, however,
the majority of legal scholars did not view the necessity of protecting the privacy of biologicalmothers as important, and ethical questions concerning unmarried mothers’ pregnancy/abortion
were excluded from the discourse on civil law.
Spurred on by media support for a birth exception law and increasing citizen activism, in 1982
consideration of the issue in the Legislative Council was reopened, and the first new conception ofan adoption system since 1959 was undertaken in earnest. Around this time legal scholar Akira
Yonekura (1986a) defined the real purpose of a special adoption system as “providing a home tochildren who do not have one, and in so doing promoting and ensuring their upbringing anddevelopment.” Through the introduction of this child welfare perspective in the form of the issue offoster care, the ethical issues surrounding unwanted pregnancy and abortion raised by Kikuta
faded from view and the passage of legislation can be seen as having accelerated as the design ofthe system became simpler. Furthermore, on the basis of the psychological stability of adoptive
parents and adopted children being important from the perspective of healthy child development,
the necessity of the law proposed by the Legislative Council in 1959 was reaffirmed and its
legitimacy strengthened. As a result of this perspective, the system designed in 1959 was realized
as is, without demands for the protection of the privacy of biological mothers in the design of thesystem being accepted or other elements, such as laws governing the arrangement of adoptions toprevent human trafficking, being incorporated.
Regarding the establishment of the special adoption system in 1987, this system can be seen as
having been created in the context of a state of affairs in which the expectations of the new system,
its purpose, and its design were not in accordance with each other. Child welfare was held up as
the aim of the special adoption system, but this system was modeled on the 1959 proposal that had
been designed to curtail falsified birth records, and its design was such that it could not be seen as
an adoption system whose range extended to broader social welfare services including services
targeting the women who would become biological mothers. This outcome may have been the resultof a confluence of several incidental factors. In the discourse of experts surrounding the process ofestablishing the special adoption system, however, statements can be found criticizing the
pregnancy/childbirth of unmarried mothers as “carelessness,” along with discrimination against
unmarried mothers expressed in the phrase “allergy against unmarried mothers” (Yonekura
1986b).

6. The special adoption system and discrimination against unmarried mothers
The special adoption legislation proposed in 1959 placed its emphasis on “reliability of thefamily register” (eliminating inconsistencies in legal relationships caused by falsified birth records),
and as a result required the recording of the biological mother’s having given birth and given her
child up for adoption on her family register. Even into the 1970s and 1980s, the importance ofconsidering practical issues concerning the lives of biological mothers who put their child up for
adoption, i.e. women who made the choice to separate giving birth to a child from raising the child,
was still not recognized. So what sort of debate concerning the protection of the privacy ofunmarried mothers and unmarried women’s pregnancies was being carried out at the time thespecial adoption system was established?
What put Kikuta’s perspective at a disadvantage was the formal criticism of his adoption
arranging activities by the Japan Association of Maternal Welfare and the Japan Association of36

Ars Vivendi Journal No.5 (August 2013): 25-41
Obstetricians and Gynecologists. These organizations opposed the creation of a new adoption
system itself. In other countries the people who supported systems like the special adoption systemwere obstetricians and caseworkers on the front lines of adoption, and the fact that the Japan
Association of Obstetricians and Gynecologists opposed this system was a stark violation of thistrend. Eikichi Matsuyama (then head of obstetrics at Tokyo Kosei Nenkin Hospital/lecturer at the
University of Tokyo), who appeared at a symposium entitled “On the birth exception law,” statedthat “from our perspective as obstetricians, there is a fundamental basic principle that parents
should give birth wanting their own child. I find the very idea of giving birth to a child you did notwant from the start and having nothing more to do with the child quite strange”(Nakagawa/Noda/Matsuyama et al. 1973).
Another doctor named Yukihiro Takayo strongly disagreed with the protection of the privacy of
biological mothers, saying “it would lead to the state guaranteeing that they hadn’t given birth andassisting in the deception of their future upstanding husbands” (Asahi Shinbun, December 3rd,1985). Arguing against this view, Dr. Kikuta (1986) pointed out the asymmetry of the fact that norecord is left on the family register of the man who gets a woman pregnant. This argument
illustrates that problems of a different dimension exist within the guaranteeing and presenting to
the public of a woman’s physical history through the family register than are found in the norm
which holds that a child must be raised by the woman who gives birth to him or her/a woman must
not give birth to a child she cannot raise. For example, even in the system proposed by Takao
Nakagawa, a legal scholar who supported Kikuta, protection of the privacy of the biological motherwas limited to suggesting an optional special reissuing of the family register as part of the adoption
process after the biological mother has already been forced to produce a record of birth and note thebirth and adoption of her child on her family register. The basis for this approach was that, in
addition to the fact that “raising a child is a person’s natural obligation as a human being, and in
relation to society this is both an obligation and a right,” births were to be noted on a woman’sfamily register “because a birth is a solemn event that as human beings we must not deny”(Nakagawa 1986). However, while in this way female reproduction is strictly administered throughthe family register, in practice there is no questioning of the fact that the donors who father
children born via artificial insemination by donor (AID) [4] are not recorded on the family register,and there is thus a double standard when it comes to family register policy.
Special measures concerning the family registers of biological mothers were left out of the
discussion by most planners and legal scholars during the process of producing the legislation, but
in addition to Nakagawa there were several others who put forward their own views. Yonekura(1987) suggested that going forward the application of such measures would be needed in the caseof minors and victims of sexual assault, and that their application in the case of unmarried womenin general should be studied and considered. As for how such special measures should be
implemented in practice, Yonekura supported a dual bookkeeping system in which a birth isrecorded on the original record without being noted on the public record and both records areappropriately linked. The view that support for women who have become pregnant unintentionallyshould be addressed not as a problem of the family register but rather one that should dealt withby social welfare functions was also put forward by child welfare officer Masao Suzuki (1987). He
gives the right of children to know their origins priority over biological mothers’ desire for family
register special measures, asserts that “in cases in which, during the process which led to becoming
pregnant, it was possible for the woman to have chosen another path, it is doubtful whether awoman’s desire not to “sully her family register as an unmarried mother” should be translated
directly into a social system,” and also interprets family register special measures as biologicalmothers’ “momentary desires while in a confused psychological state.”“A child’s right to know his or her origins” had often been put forward as grounds for opposing
special measures concerning biological mothers’ family registers, but Masanori Yamamoto (1986)
clearly stated that “the unavoidable and difficult problem of an adopted child’s search for his or her
roots should be dealt with by appropriate notation on birth registration documents, particularly
birth certificates, and not family registers.” Among the many who displayed doubtful or cautious
opinions while paying attention to the protection of the privacy of biological mothers as an issue tobe examined, Yamamoto was the scholar closest to Kikuta’s perspective. Kikuta’s personal proposal
for a birth exception law sought the acceptance of “pre-registration adoption” in which a birth37Ars Vivendi Journal No.5 (August 2013): 25-41
certificate recording the fact that the biological mother had given birth would be kept on file whilea record of birth with the adopted parents’ names would be accepted [for entry in the family
register] (Kikuta 1979). Yamamoto believed that keeping a birth certificate is sufficient for when achild wants to learn about his or her origins and that it is not necessary to make this information
public on the family register. Even today records of birth with birth certificates attached are kept
for twenty-seven years after being filed (Ordinance for the Enforcement of the Family Registration
Act, Article 49, paragraph 2), and if necessary this period could simply be extended, but at the time
the system was being constructed this proposal was neither considered nor utilized.
In the current discourse surrounding the special adoption system, the necessity of thebiological mother’s privacy is adequately recognized and addressed as an important topic.
Nevertheless, in the debate over baby hatches, expectations of the special adoption system often go
no further than its function as a social welfare service for children who have been left at a baby
hatch. In today’s Japan, priority must be given to eliminating the discrimination against
unmarried mothers that remains in the special adoption system and creating a system thatprovides women who become pregnant unintentionally with a practically viable alternative to baby
hatches.

Conclusion: What can be done before baby hatches
A system that allows parents to anonymously surrender their parental rights is the method oflast resort in preventing infanticide. There are problems with such systems, however, including
serious physical risks and psychological burdens for the pregnant woman and failure to guarantee
the child’s right to know his or her origins. If circumstances arise that nonetheless make such asystem necessary, there is also a need to put in place measures to avoid its having to be used.
Using “baby hatches” as a starting point, in this paper I have examined the issues surrounding
children born out of wedlock/unmarried mothers in Japan. These issues were elucidated through a
comparison with the social backdrop underlying German Babyklappen and American Safe Haven
laws. Just as German society with its Babyklappen recognizes immigration issues and American
society with its Safe Haven laws addresses abortion issues, Japanese society too must seriously
consider issues surrounding unmarried mothers/children born out of wedlock as issues of women’s
rights and children’s lives.
There are cases of child abandonment/infanticide that could be avoided by improving andadjusting the various systems surrounding baby hatches. What can be done before debating thepros and cons of baby hatches is, to begin with, establishing and supporting singlemotherhood/single-fatherhood as a way of life within society. Next, the adoption system can be
improved so that women who become pregnant unexpectedly can make use of it and are not limited
to a choice between abortion and becoming a single mother. Adoption can leave the child inquestion a method for tracing his or her roots that cannot be guaranteed when a baby hatch oranonymous birthing system is used. And going forward experimentation with open adoption, as it
alleviates not only the distress of adopted children but also the distress felt by women who havegiven up their children, will presumably be taken up as an issue to be addressed concerning the
adoption system in Japan along with the protection of the privacy of biological mothers.
Also, in Japan as in other places there are people grappling with various difficult situations
including being in the country illegally, drug addiction, and being the victim of domestic violence orother crimes, and women sometimes become pregnant unintentionally. It may be that appallingincidents involving mothers and children in very difficult circumstances will not cease to occur nomatter what kind of legal system is put in place. In such cases it can be seen as preferable for theidea of anonymous birth, which can provide for safe childbirth without becoming a vehicle for theabandonment of older children, to come before baby hatches.
I did not discuss it in this paper, but the current state of affairs in Japan in which access tooral contraceptives (“the Pill”), the most reliable method of birth control for women, is limited inpractice is another problem. No matter what the circumstances, neither abortion nor baby hatches
can be considered truly desirable choices by those who make use of them. The Pill is a mainstream
form of contraception in Europe and America, and the high number of abortions that have led to38

Ars Vivendi Journal No.5 (August 2013): 25-41
Japan being called an “abortion paradise” are not found in these countries. This issue is currently
being discussed by Norgren (2001) and others, and going forward will presumably become anincreasingly important issue to be addressed. Making it easier for women to obtain the Pill isanother step that can be taken before setting up baby hatches, and by providing information about
the Pill’s safety and making it easier to obtain it should be possible to avoid some of the cases inwhich a woman is placed in a difficult position because of an unplanned pregnancy.
The problems surrounding unmarried mothers and children born out of wedlock show thatJapanese society still has many issues to be addressed regarding pregnancy, abortion, single
motherhood, and adoption. The pros and cons of baby hatches can only be discussed after the social
issues that have necessitated their creation have been identified by considering the various issues
related to these facilities.

Notes[1] “Open adoption” is a form of adoption in which there is some kind of communication andongoing relationship between biological parents and adoptive families. The degree of openness
can range from highly open cases in which the two parties interact directly (in person, on thetelephone, etc.) without any intermediary, to comparatively less open cases in which letters or
photographs are exchanged via a social worker. Open adoptions are recommended in theinterests of the child, and have been made legal in states such as California (Kirino 2000).
[2] Under the special adoption system, the child’s legal relationship to his or her biological parents
is completely severed, separation from the adopted child by the adoptive parents is in principle
not accepted, and the notation on the family register is almost the same as in the case of abiological child. It has been formed by family court decisions, and the process of arranging
adoptions is handled by children’s welfare centers.
[3] For a detailed discussion of the process by which the special adoption system was formed andthe debate among legal scholars see Yoshida (2009)[4] Because AID is, unlike in vitro fertilization, technically simple, it has an almost sixty-year
history as a fertilization treatment in Japan and is thought to have facilitated the births of over
10,000 individuals. Louise Brown, the world’s first “test tube baby,” was born in England in
1978, Japan’s first child conceived via in vitro fertilization was born at Tohoku University
Hospital in 1983, and interest in reproductive technologies can be seen as having been
increasing. Yamamoto (1986) also makes reference to the legal issues surrounding AID children.

Works cited
Bazar, Emilly and Wendy Koch, 2008, “Nebraska’s ‘Safe Haven’ Session Starts: Many are Splitover Setting Age Limit for Law,” USA Today, November 14, 2008.
Child Welfare Information Gateway, 2007, “Infant Safe Haven Laws: Summary of State Laws”（http://www.childwelfare.gov/systemwide/laws_policies/statutes/safehavenall.pdf, accessed
September 6th, 2009）
Coodley, Lauren, 2009, “Nebraska Safe Haven Laws: A feminist Historical Analysis,” PediatricNursing, 35(1): 60-63.
Goodman, Roger, 2000, Children of the Japanese State: The Changing Role of Child Protection
Institutions in Contemporary Japan, Oxford University Press.
Hasuda, Taiji, 2007, “On the Creation of the Stork’s Cradle,”(http:// www.jikei-hp.or.jp/yurikago/1-1.html, accessed September 6th, 2009). [In Japanese]
Hata, Kenichi, 2003, “From the Results of a Survey on Teenage Abortion,”(http:// www.jaog.or.jp/japanese/MEMBERS/TANPA/H15/030217.htm, accessed September 6th,2009). [In Japanese]
Ministry of Justice Civil Affairs Bureau, 1959, “On Revisions to the Part of Civil Code Dealing withRelatives,” Law Times 31(9): 987-992. [In Japanese]39Ars Vivendi Journal No.5 (August 2013): 25-41
Kikuta, Noboru, 1986, “Protection of Childbirth/Adoption Privacy is a Necessary Condition forSpecial Adoption,” New Family 8:24-27. [In Japanese]────, 1979, Angels, Soar into the Sky: One Obstetrician’s Struggle, Koyu Shuppan. [In Japanese]
Kikuchi, Midori, 1998, “The Special Abortion System and Family Registers,” Fujiko Sakakibara ed.,Family Register System (Children’s Human Rights Series 10), Akashi Shoten. [In Japanese]
Kirino, Yumiko, 2000, “Legalized Open Adoption in America,” Bulletin of Kyoto Notre Dame
University 30:77-91. [In Japanese]
Kumamoto Prefecture Low-Birthrate Counter-measure Department, 2008, “Midway Report on
Inspection Results (summary) by the Konotori-no-yurikago Inspection Committee.” [InJapanese]
Lingle, Linda, 2003, “Statement of Objects to House Bill No. 133”(http://www.americanadoptioncongress.org).
Matsumura, Tatsue, 2004, “The Child Rearing Allowance System and Discrimination against
Unmarried Mothers and Their Children,” Konsakai, Unmarried Mothers and Children Born
Out of Wedlock: Towards Tomorrow Without Discrimination, Aoki Shoten. [In Japanese]
Nakagawa, Takao, 1986, “Fundamentally Approve, Enthusiastically Realize,” New Family 8: 18-47.
[In Japanese]
Nakagawa, Takao, Aiko Noda, Eikichi Matsuyama, Hideo Hara, Toshio Ishikawa, Kiyomichi
Agawa, and Yorihiro Naito, 1973, “(Round-table) On a birth exception law,” Rule of Law 26: 340. [In Japanese]
Nishi, Kiyoko, 2001, “A Study of the Establishment of Filiation of Maternity: Taking theAnonymous Childbirth System in France as a Starting Point,” Hongo Journal of Law and
Politics 10:397-431. [In Japanese]
Norgren, Tiana, 2001, Abortion Before Birth Control: The Politics of Reproduction in Postwar
Japan, Princeton University Press.
Ogino, Miho, 2001, The Abortion Debate and American Society: A Battle over the Body, Iwanami
Shoten. [In Japanese]Oki, Kiko, 2004, “Looking towards the Future of Japanese Children Born Out of Wedlock andUnmarried Parents,” Konsakai, Unmarried Mothers and Children Born Out of Wedlock:Towards Tomorrow Without Discrimination, Aoki Shoten. [In Japanese]
Ochi, Midori, 2008, “‘Baby-Post’ from the Perspective of Children’s Futures: A Comparison with theCurrent Situation in Germany,” Reference 6: 53-72. [In Japanese]
Pertman, Adam and Georgia Deoudes, 2008, “Comment: Evan B. Donaldson Adoption InstituteResponse,” Child Maltreatment, 13(1): 98-100.
Supreme Court Secretariate, Annual Report of Judicial Statistics - Family Cases. [In Japanese]
Sakamoto, Kyoko, 2008, “The Current Situations and Problems Related to ‘Babyklappe’ inGermany and ‘Baby-Post’ in Japan,”Philosophical and Ethical Researches in Medicine 26: 2129. [In Japanese]
Sakamoto, Yoko, 2008, Children Put Aside by the Law (Iwanami Booklet 792), Iwanami Shoten.
[In Japanese]
Sato, Bunmei, 1984, Discrimination Created by Family Registers, Gendai Shokan. [In Japanese]
Sato, Takao, 2004, “What is a Person: German Babyklappen and Anonymous Childbirth,” Family
Register Times 577: 78-83. [In Japanese]
Sanger, Carol, 2006, “Infant Safe Haven Laws: Legislating in the Culture of Life,” Columbia Law
Review, 106(4): 753-829.
Suzuki, Hirohito, 1998, “Adoption as a Welfare System,” Law Report 104 (8･9): 371-422. [InJapanese]
Takahashi, Yukiko, 2001, “The Minor Adoption System in Germany,” Yasuhiko Yuzawa ed.,Adoption and Fostering, Nihon Kajo Shuppan. [In Japanese]────, 2007, “The German Adoption Arrangement System: Efforts of the Law to Catch up to
Problems on the Ground,” Yasuhiko Yuzawa ed., International Comparison of Adoption
Arrangement, Nihon Kajo Shuppan. [In Japanese]
Takakura, Masaki, 2006, The Price of Babies, Kodansha. [In Japanese]40Ars Vivendi Journal No.5 (August 2013): 25-41
Tebo, Margaret Graham, 2001, “Texas Idea Takes Off: States Look Safe Haven Laws as a
Protection for Abandoned Infants,” ABA Journal, September 2001: 30.
Yamamoto, Masanori, 1986, “Special Adoptees and Family Registers: Born Special Adoptees?” New
Family 8:45-47. [In Japanese]
Yonekura, Akira, 1986a, “Discourses Lacking in Understanding: The Necessity of Considerationfrom the Starting Point of Childrearing,” 40 Years of Foster Homes: Searching for Starting
Points and Ways Forward, Zenyokyo. (Reprinted: 1998, Research on the Special Adoption
System, Shinsei Shuppan , 181-230.) [In Japanese]────, 1986b, “On the Approaches Taken in the Debate over the Special Adoption System: Ways ofThinking about the Treatment of Unmarried Mothers Concerning Family Registers and Needto Shift the Perspective of the Discourse,” New Family 8: 51-58. [In Japanese]────, 1987, “How Should We React to the Establishment of the Special Adoption System? (Parts 1,
2 and 3),” Jurist 894: 54-61, 895: 86-94, 896: 90-97. [In Japanese]
Yoshida, Kashimi, 2009, “The Process of the Establishment of the Special Adoption System: The
Demands of the Welfare System and the Design of the Special Adoption System,” Ritsumeikan
Journal of Human Sciences 19: 77-90. [In Japanese]
Yoshizumi, Kyoko, 1992, “Unmarried Childbirth and Identity Registration Systems: A comparisonof Japan, Sweden, and America,” Kyoko Yoshizumi ed., Wanting to Live without Marriage:
Challenging Discrimination against Children Born Out of Wedlock , Aoki Shoten. [InJapanese]────, 2004, “Children Born Out of Wedlock and the Marriage System in Sweden ,” Konsakai,

Unmarried Mothers and Children Born Out of Wedlock: Towards Tomorrow Without
Discrimination, Aoki Shoten. [In Japanese]
Yuzawa, Yasuhiko ed., 2007, An International Comparison of the Arrangement of Adoption ofChildren in Need of Care, Nihon Kajo Shuppan. [In Japanese]
Yuzawa, Yasuhiko ed., 2001, Adoption and Fostering, Nihon Kajo Shuppan. [In Japanese]

Wagatsuma, Sakae, Zennosuke Nakagawa, Kenichi Okuno, Fumio Kozawa, Tomokazu Murakami,
and Koichi Bai, 1959, “(Round-table) New Family Law Reforms,” Law times 31(11): 1245-1276.
[In Japanese]＊First appearance: Sakurai Hiroko and Hotta Yoshitaro eds., 2009, Ethics of Birth: Choice toward"Living," Research Center for Ars Vivendi at Ritsumeikan University, Kyoto, Japan, pp. 34-61.

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