Governing Assisted Reproduction in Japan: Lessons for
the Medical Profession from Its Counterpart in Justice

CBEL Report Volume 4, Issue 2

Regular Article

Governing Assisted Reproduction in Japan: Lessons for the Medical Profession
from Its Counterpart in JusticeSilvia Croydon (Osaka University)

Abstract
Despite the promulgation of a law for assisted reproduction in Japan in December 2020, the policies in this area of
medicine here remain largely determined by the Japan Society of Obstetrics and Gynecology (JSOG). The validityof the assertion that the Society only rules because the legislature is loath to do so put aside, the doctors’ “service” aspolicy-makers does not appear to be held in high regard. Indeed, JSOG’s decisions often come under sharp criticism
domestically and internationally. This article presents the latest manifestation of this phenomenon. In particular, I
focus on the condemnation with which the recent efforts of JSOG have met to expand, beyond the cases where there
is a survival risk in childhood, the application of a procedure known as pre-implantation genetic testing for monogenic
disorders (PGT-M). With a view towards resolving this stalemate in a way that both enjoys greater acceptance by the
public and frees JSOG from the impossible task of devising policies that reflect something as elusive as the public’s“common sense”, the article advances the idea that the Society lobbies for the instalment of a citizen-dominatedregulatory body modeled on the example of the British Human Fertilization and Embryology Authority (HFEA).

Keywords: Pre-implantation genetic testing for monogenic disorders, Japan, Japan Society of Obstetrics and Gynecology, disability, assisted reproduction, Human Fertilization and Embryology Authority

1. Introduction

five couples at risk of transmitting recessive X-linked

In 1988, a pioneering assisted reproductive proce-disorders, including X-linked mental retardation, Adre-

dure was developed at the In Vitro Fertilization (IVF)

noleuko Dystrophy, Lesch-Nyhan Sndrome and Du-

Unit of London’s Hammersmith Hospital. With the help

chenne Muscular Dystrophy, with all of the women inof geneticists, the team led by scientist-cum-physician

question having previously undergone termination ofRobert Winston had managed to deliver diagnosis ofaffected fetuses. The rationale behind the procedure was

pre-implantation embryos of couples affected with X-

that since girls inherit two X chromosomes, one fromlinked heritable conditions so that an unaffected suchtheir mother and one from their father, whilst boys in-could be selected for transferring to the womb and be-

herit an X chromosome from their mother and a Y chro-coming that couple’s child. The procedure, which was

mosome from their father, if a mother is a carrier of athereafter described in a paper in the high-profile jour-condition owing to a mutation on one of her X chromo-

nal Nature (Handyside et al. 1990), was performed onsomes, there is a 50% probability for a girl to be born a1

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Silvia Croydon

carrier (which entails low likelihood of manifested

2019). On the other hand, there were those who held thatsymptoms) and a boy to be born affected. In other words,

this principle is problematic on many levels, most nota-by selecting for a female embryo, the team could reduce

bly in that it places lower moral value on the disabledsignificantly the possibility that these couples, who

and the lives they lead (to cite just a few examples: San-

wished for an unaffected child, would go through an-del 2004, 2009; Bennett 2008; Holland 2016), with theother fetal termination.

implication often mentioned that, once this principle isWith time, the technology became more sophisti-

adopted and procreative liberty through unlimited ge-cated and instead of seeking to control for a condition

netic testing is adopted, it would lead to a slippery slope

through sex-selection, it became possible to test directly

where children would be selected for all kinds of rea-

for the parental genetic mutation in embryos. Indeed,sons beyond the consideration of wellbeing.

within five years, a report emerged from the same group

Based on such debates, the framework for imple-

in another major medical science platform — the New

menting this diagnostic procedure was set globally, al-England Journal of Medicine — that healthy babies

beit with some countries being exceptions, to be limited

were born after three couples where both members wereto cases where there are medical indications. As Donrop

carriers of the ΔF508 deletion for Cystic Fibrosis wereand de Wert, for example, have aptly summarized, intargeted for pre-implantation diagnosis (Handyside et al.

Europe in particular pre-implantation genetic testing has

1992). As the range of genetic characteristics for whichbecome reserved for cases where there is a high risk oftesting could be performed from a technological view-a serious medical condition, with advocacy also being

point grew substantially, bioethical debates began tomade lately for consideration of other cases in contex-

emerge as to whether employing such technology istualized proportionality (de Wert 2005; de Wert et al.

wise and where the line should be drawn with regards to2014; Dondorp & de Wert 2018). To be more specificcontrolling its implementation. On the one hand, therewith regards to the latter point, the inclusion for pre-im-

were those who were of the opinion that the technology

plantation genetic testing for monogenic disorders

should be employed without limitations, with philoso-(hereafter PGT-M) is urged of cases where there could

pher Julian Savulescu, most prominently for example,

be a transgenerational health benefit, as in the child of

employing the principle of procreative beneficence —the planned child being given a chance to be free of theas in the moral obligation of a couple thinking of pro-said condition without the intermediate generation hav-

creating, with all other things being equal, to attempt to

ing to undergo burdensome medical procedures (dehave the child with the best chance of the best life pos-

Wert 2005), or where the saving of an already existing

sible — to explain his stance (Savulescu 2001;

sibling is at stake (de Wert et al. 2014), or, lastly, where

Savulescu & Kahane 2009). Founded on this principle,“last chance” affected embryos are transferred provided

Savulescu and colleagues have even argued that there isthat there is some likelihood with them that they woulda moral case to be made for the state funding such IVF

not lead a seriously diminished quality of life (Dondorp

cycles for their citizens (Kemper, Gyngell & Savulescu& de Wert 2018).

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Governing Assisted Reproduction in Japan: Lessons for
the Medical Profession from Its Counterpart in Justice

CBEL Report Volume 4, Issue 2

Against this background of wide global acceptance

medical experts and 13 specialists in the area of the hu-of PGT-M, it is conspicuous that the application of thismanities and social sciences convened on three widely

procedure in Japan — the country reports the highest

publicized occasions to consider the appropriateness ofnumber of oocyte aspiration cycles internationallydropping the phrase of “prior to reaching adulthood (sei-(Mouzon et al. 2020; Croydon forthcoming) — is on an

jin made ni)” from the line in the Society’s Guidelines

extremely low scale. Not only did Japan come onto thethat describes the timing of symptom-manifestation in

PGT-M implementation scene belatedly — or more pre-the conditions that qualify for PGT-M 2.

cisely, a decade and a half after the pioneering first such

Given the consequential nature of this question, theprocedure was performed at London’s Hammersmithpresent article puts a spotlight on these deliberations. To

Hospital in 1988 (Munné & Cohen 2004), but even after

foreshadow what follows, I zoom in on the JSOG-orga-

it had done so, it applied this kind of screening only in

nized deliberations, demonstrating the intense disagree-

an extremely limited number of cases. As revealed in ament that exists on the issue and the sense of doubt that2017 report by the body left to regulate this sector in

the Society is managing this debate well. Taking stock

Japan—the Japan Society of Obstetrics and Gynecologyof this material, I then move on to explore a possible(JSOG), until March 2015, there had only been 125 in-path forward on this, as well as other, thorny reproduc-

stances in which this procedure had been implemented

tive issues. In particular, I examine the possibility of a

(JSOG 2017). Although there is no ready data that per-body similar to the citizen-dominated Human Fertiliza-

mits a comprehensive international comparison, to givetion and Embryology Authority in the UK managing toan idea of how low the reliance in Japan has been on thisreach a more broadly supported decision. The reason forprocedure, it can be highlighted that in just one facility

choosing to draw attention to the British system in par-in the United Kingdom (UK) there had been as many as

ticular is because, as Alghrani has noted, Britain has

3,828 PGT-M cycles for the period of 1997-2019 1.

been a pioneer not only in terms of technological devel-

On the issue of PGT-M in Japan, a formal debate

opments in assisted reproduction, but also in terms of

was recently conducted as to whether its application

devising a regulatory framework for governing andcould be expanded beyond the cases where a risk exists

monitoring these, with its system being copied widelyfor daily life to be markedly affected, or for death to oc-

throughout the world (Alghrani 2019). How has thecur, in childhood. Indeed, on the initiative of JSOG,

country arguably at the avant-garde in this area settled

from January 2020 to February 2021 a group of 14

this debate then? How is indeed an issue such as that of1

Guy’s and St Thomas’ National Healthcare System (NHS) Foundation Trust website,www.guysandstthomas.nhs.uk/our-services/pgd/about-us/success-rates.aspx. Accessed 23 October 2021.
2
JSOG. 2021. “Jūtoku na idensei shikkan ni tai suru chakushō-zen shindan ni kan suru rinri shingikai (dai san-bu)
de no hatsugen aruiwa shōroku teishutsu no onegai [Request for Submission of Abstracts for Statements Regarding the Third Part of the Ethical Deliberations for Pre -implantation Genetic Testing for Serious Heritable Conditions],” http://www.jsog.or.jp/modules/news_m/index.php?content_id=906. Accessed 21 June 2021.
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Silvia Croydon

PGT-M resolved there? Finally, having introduced thean abstract in advance conveying their arguments, their

HFEA type of governance, I consider what barriers there

comments were made in real time through the web-might be for the British model of assisted reproductive

meeting system.

governance to be adopted in Japan. Specifically, I ap-

These efforts of JSOG to secure social consensus

praise the way in which the possible resistance fromand achieve a revision of what constitutes a “severe her-

JSOG to the idea of surrendering their position as theitable condition (jūtoku na iden-sei shikkan)” notwith-sole interpreter of reproductive rights in Japan could bestanding, the debate about expanding PGT-M applica-

countered. To make the idea of lobbying for the install-tion ended on a standoff between, on the one hand, rep-

ment of such a body more palatable for the Society, I

resentatives of feminist and disability groups, as well as

draw on the statements expressing a sense of relief byother stakeholder professional medical societies, and,members of the Japanese judiciary following the imple-

on the other hand, patients of reproductive age with non-mentation in 2009 of the lay-judge system (saiban’inlife-limiting/threatening or late-life onset conditions.

seido). Ultimately, I argue that by letting members of the

The former objected to the proposed change on grounds

public decide on the controversial ethical aspects of as-

such as that too many conditions would qualify in one

sisted reproduction, the Society could free itself fromfell swoop for PGT-M, or, more fundamentally, that thisthe onus of having to capture in their judgements theprocedure constitutes discrimination towards people

evasive “way of thinking” of the Japanese people.

with disabilities and is a way of pressuring women to
give birth only to children of a particular kind. As for2. The PGT-M expansion deliberations: Stalemate
and condemnation

the latter, they complained about not being permitted toavail themselves of the existing technology and having

In simple terms, the proposal that JSOG put for-to entrust instead the future of their offspring to some-ward for consideration in January 2020 was to makething as uncertain as the development of therapeutic

PGT-M applicable for all conditions that can impact atreatments.

person’s everyday life in a notable way, regardless of

Not only was the outcome of these deliberations,

whether they have an early-life onset or a late-life onset.

the extent of which is evident from the nearly 900 pages

As for the format of the deliberative sessions, lastingin terms of minutes 3, a stagnation, but JSOG also be-half a day each, time was secured for stakeholder state-came the subject of a severe reprimand by the opponents

ments — i.e. patients’ organizations, disability groups,of PGT-M for this initiative towards expansion. In par-academic and medical associations — as well as mem-

ticular, the JSOG minutes show one civic group repre-

bers of the ordinary public. Although with respect to thesentative 4 commenting that, by seeking to loosen thelatter, there was a requirement that they send to JSOG

rules, JSOG is becoming majorly complicit in the

3
4

4

Ibid.
Note that the names of everyone but the panelists in these sessions were withheld by JSOG in their minutes foranonymity purposes.

Governing Assisted Reproduction in Japan: Lessons for
the Medical Profession from Its Counterpart in Justice

CBEL Report Volume 4, Issue 2“grading of life and the selection of humans (inochi no

about what the PGT-M regulations should be had al-joretsuka ya ningen no sembetsu)” 5 . Even until thisready been drawn by JSOG before the start of the delib-

point, this person states, JSOG’s “incompetence (fugai

erations. The way the opinions were ordered, one criticnasa)” induced cerebral palsy in many babies, withargued, of first objections being voiced followed by ex-

there being a mountain of evidence attesting to this. Re-

pressions of support, with only a member of the Society

ferring to the Eugenics Protection Act (Yūsei Hogo Hō),being allowed to then summarize the discussions, waswhich was abolished only in 1996 and which permitted

prejudiced, and left people “feeling powerless and as if

the involuntary sterilization of people with intellectual,

their time and effort had been wasted (tōro ni owari,mental and physical disabilities, this citizen argued thatmuryokukan ni mitasare, jyūjitsukan no nai hakanasa

JSOG had lent its hand to eugenics and was now “trying

dake ga kokoro ni nokotte imasu)”.

to eliminate disabled people from the bud (shōgaisha

Based on the impasse reached, and in the face of

wo moto kara tatō to iu koto darō ka)”. “Are you not asuch denunciations, the Director of JSOG, Tadashi Ki-

bit arrogant? (Sukoshi gōman sugiru no de wa nai desōmura, closed the last deliberative session in Februaryka)”, they asked rhetorically, suggesting also that if em-

2021 with the remark that further discussions would

bryo screening becomes rampant, so many disabled

need to take place before the Society could decide if topeople would become discriminated against as “exist-

implement PGT-M expansion or not, thereby leavingences that were not meant to be (umarete kuru beki deambiguity about what precisely could be expected towa nakatta sonzai)”. Objection was also taken by afollow. Since then, however, JSOG has released on their

number of other attendees to the referring as “concerned

website a concrete proposal for expansion along theindividuals (tōjisha)” in the discussions of only thoselines of their original suggestion, inviting the public to

who come to the medical facilities seeking PGT-M. This

give feedback on it 6. Whilst this is in line with Kimura’s

was one-sided, the argument was made. People with dis-comment above that further consultation will take place

abilities are as much concerned, they said whilst refer-

before a verdict is given either way, the reportage thatring to articles of the United Nations Convention on thefollowed in the media is that the Society has already de-Rights of Persons with Disabilities, and it was unfair tocided upon expansion for illnesses that can commence

exclude them from the decisions about this procedure.

in adulthood and that the implementation of this deci-

Lastly, the protest was expressed that the conclusion

sion will take place from 2022 7. To recap, it appears that5

Supra note 2.
JSOG website. “Rinri iinkai teian: Jūtoku na iden-sei shikkan wo taishō to shita chakushō-zen idengakuteki kensa
ni kan suru kenkai/saisoku (Kaitei-an he no paburikku comento boshū) [Ethical committee proposal: Guidelines
regarding genetic testing for serious heritable conditions (An invitation for public comments on the revision proposal)], https://www.jsog.or.jp/modules/committee/index.php?content_id=191. Accessed 13 November 2021.
7
For example, see: Mainichi Shimbun. 19 November 2021. “’Handan kijun wa?”, ‘Kakudai no hadome wa?’:
Chakushō-zen shindan kakudai ga motarasu mono” [‘What will the criteria be?’, ‘What safeguards will be put inlace?’: The questions raised by the expansion of PGT- M],
https://mainichi.jp/articles/20210827/k00/00m/040/096000c. Accessed 6 November 2021.
6

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Silvia Croydon

the Society’s continuous efforts towards diversification

has now been at the center of ART controversy in Japanof PGT-M implementation leave it vulnerable to thefor over two decades of “For which couples, and for

censure that the deliberative public consultations it or-

which genetic disorders, is it permissible to grant accesschestrated were merely for show and that its true goal

to PGT-M?” is an ethical one. Indeed, it is not one about

with them was to simply legitimize, or create an alibi for,best clinical practice, as in efficacy and safety. Thus, thethe conclusion that it had already reached in favor of ex-situation in Japan of the obstetricians and gynecologists

pansion. JSOG’s critics are accusing it of acting unilat-

being the ones who ultimately call the shots with regards

erally and in spite of wide-spread public reservations.

to access to PGT-M, amongst other assisted reproduc-

Observers are levelling the charge at the doctors that ittive treatments, appears arbitrary. As has been argued

does not count as consultation, at least not an inclusive

elsewhere (Croydon 2021), the doctors are trained to an-one, when they hear that there are objections and thenswer questions about which medical treatment is best in

still proceed anyway with what they themselves see fit.

a particular situation, and whether these are safe; they
have no more expertise than the next person to adjudi-

3. Within whose remit is PGT-M policy anyway?
Not the doctors’!

cate on whether it is morally justifiable to make someone eligible for such a treatment. This is indeed a ques-

In 2009, in an article exploring the differencestion that society at large ought to answer. The JSOG

around the globe in assisted reproductive technology

might well be an institution that operates in the public(ART) governance, Belgian bioethicist Guido Pennings

interest. However, at the end of the day, its composition

made an argument that pertains deeply to the situation

is exclusively of medical practitioners and there is nowith regards to PGT-M management in Japan. Whilst

reason why the resolution to questions such as that about

acknowledging that in many places around the world a

the accessibility to PGT-M should be left to them; thelack of legal framework means that doctors are left bymoral view of the doctors cannot be guaranteed to con-default as regulators and arbitrators on difficult moral

verge with that of society as a whole. The de facto mo-issues in this area, he suggested that a state of affairs is

nopoly that doctors here hold over implementation of

inappropriate. To cite him, “the most controversial is-such procedures needs to be ended. Their occupying thesues [in assisted reproduction] are not medical issues

position of the administrator of such treatments on theand, consequently, the physicians have no special exper-site does not in itself represent a qualification for mak-tise to decide these matters. Therefore, why should so-

ing decisions on everyone’s behalf.

ciety leave it to the doctor to determine the moral status

So what other modes of governance could beof the embryo or the acceptable risk for the child?” (Pen-adopted to make the decisions on the ethical aspects ofnings 2009: S17). In other words, in Pennings’ view, theART more pluralistic and thereby democratic? How are

ethical elements of ART treatments do not fall within theother countries managing the clashes between interested

purview of the medical professionals.

parties in assisted reproduction? The next section exam-

In line with Pennings’ suggestion, the question that
6

ines this issue, zooming in on the specific model ofGoverning Assisted Reproduction in Japan: Lessons for
the Medical Profession from Its Counterpart in Justice

CBEL Report Volume 4, Issue 2

governance adopted in Britain — a country that has pi-

Pennings’s observation about the legitimacy which

oneered not only numerous ART treatments but also rel-the HFEA enjoys appears to be valid. True, many criti-

evant regulatory instruments.

cisms have been levelled at this Authority — from failing to undertake proper inspections of clinics, to issuing

4. Towards a resolution of the stalemate: Borrowing
from Britain?

license for a condition multiple times, to allowing clinics to charge inflated prices for IVF treatment and asso-

In the same article by Pennings as cited above, anciated genetic tests, to not taking measures where lackoutline was presented of the advantages and disad-of compliance with licensing requirements has been

vantages of the various ways in which a nation canfound), leading sometimes to experts, such as Robertchoose to regulate its ART sector (Pennings 2009). Alt-

Winston mentioned at the outset of the article, to call forhough the main impetus of Pennings was to defend theit to be scrapped (Morris 2004; BioNews 2004). How-

existing international legal mosaicism in the governance

ever, the appropriateness of the idea on which it is basedof assisted reproduction against pressures to “harmonize”— that public participation in the governance of ART isthe existing regimes, a somewhat favorable view wasdesirable — is not something that is often questioned.

expressed of the British example. “The best example [ofThis principle was in fact precisely what Mary Warnock

an intermediary regulatory authority for ART] is thesought to uphold with her recommendations for the Au-[British] HFEA,” he stated (Ibid.: S17). Although thosethority’s design 8. She wanted it to be seen as neutral andcalled to make the decisions on ART treatments within

objective, as opposed to merely reflecting the biases ofthe HFEA are not elected in the way politicians are by a

the medical and scientific community. By recommend-

public vote, their decisions, he explained, are defensible

ing that more than half of its members are neither doc-

in front of citizens and help avoid emotional gut reac-

tors nor scientists engaged in human embryonic re-tions. “[T]he composition of such authority may differ

search and the provision of fertility services, but lay

depending on its task, but the idea of bringing experts

people, and by decreeing that its Chair and Deputy

together with lay people has an advantage when the rec-Chair will be laymen as well, the Warnock Committee

ommendations have to be defended publicly”, Pennings

made it clear that the concern of the Authority is the ad-wrote (Ibid.). In other words, while the HFEA has thevancement and protection of the “public interest”.

drawback of not necessarily representing the values andTo link this with the case of PGT-M in Japan, given

mores of the majority in British society, its rulings could

the accusation leveled at JSOG by members of the dis-be said to carry a certain level of legitimacy. This is be-ability and feminist community from the very early days

cause the majority of those who made these rulings areafter the advent of this technology of trying to impose

ordinary citizens.

its own view on the rest of the society, it appears

8“Report of the Committee of Inquiry into Human Fertilization and Embryology.” Department of Health & Social
Security, London, 1984.
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Silvia Croydon

appropriate to suggest that its leadership considers re-

HFEA in Japan might not make a difference, it is true

tracting from the decision-making scene and directingthat depending on who is selected as board members andits efforts instead towards the installation of a formal,

what the tone set by the Chair is, the decisions on PGT-

statutory body, perhaps similar in design to the British

M might end up just the same as they are now. However,

HFEA, that would take over the governance of suchto reiterate what was said earlier in this article, the fact

thorny assisted reproduction issues as this one. Afterthat the majority of the HFEA members are not medical

two decades of trying to respond to the needs of patientsor scientific practitioners but simply private citizens

while also failing to secure support for this from othermakes all the difference for the legitimacy their deci-sections of the public, the Japanese doctors’ community

sions enjoy with the public. Even if a patient or another

could perhaps learn that the role of being the interpreterconcerned party is not satisfied with a policy or a deci-of reproductive rights is not really theirs to play. As

sion that has been made on their case, it is difficult for

Croydon points out, the adjudication of matters such asthem to make the argument: “Yes, but the people who

who is eligible for ART treatment and when the latter

decided this are all doctors, and their views are skewed,

can be applied does not fall strictly within the purview

as they have no way of understanding what it is for or-of medical specialists, whose qualification goes only sodinary members of the public”. As explained earlier,

far as commenting on what constitutes best clinicalover half of the members of the HFEA at any one timepractice (Croydon 2021). Answering questions of ethi-

are neither medical professionals nor scientists. This

cal nature is, in the end, the prerogative of the society atmeans that the criticism levelled at the JSOG that theylarge.

have inherent bias cannot be made for the HFEA.

With regards to this proposition, the argument

To elaborate further on point made above, suppose

could be made that an HFEA-like body in Japan mighta British-style model is adopted. In the UK itself, thenot yield an outcome different to the one already inboard of HFEA is currently composed of:place. If it is citizens that clash, why would another format of discussion between them yield a different result?

 a former corporate lawyer active also in a learn-

In response to this, it is necessary to highlight that unlike

ing disability and children’s charity (Chair)

JSOG’s drafting of Guidelines, which is voluntary, a

 a former correspondent on national security is-statutory body installed for the purpose of regulating assisted reproduction would need to legitimize its existence by delivering decisions. Furthermore, if the example of the HFEA is followed, these decisions would bemade on the basis of a simple majority, which is a much
lower threshold for producing judgements than the apparent current goal of securing a consensus. Finally, toconsider one more possible objection to the idea that an
8sues (Deputy Chair) a management consultant and former civil servant with experience of unsuccessful IVF

 a Professor of Healthcare Law
 a Medical Director and Person Responsible of a
Fertility Unit

 a Professor of Law

Governing Assisted Reproduction in Japan: Lessons for
the Medical Profession from Its Counterpart in Justice

CBEL Report Volume 4, Issue 2

 a Consultant Embryologist

like HFEA system is also clear: under such type of gov-

 a Medical Director of a hospital’s Assisted Con-ernance of assisted reproduction, there would be uni-

ception Unit and a PGT-M program Director

formity in treatment that would stem form the blanket

 an ordained minister of the Methodist Church

rule that would be adopted. Decisions would be made

 a consultant in Clinical Genetics

with regards to each condition, as opposed to each pa-

 a broadcaster with experience of fertility treat-tient. This situation would indeed be significantly different from the current one in Japan whereby JSOG ex-

ment and with a daughter born through gestaamines on a case-by-case basis each application, withtional surrogacy

the possibility of bias playing a part.

 a Professor of Clinical and Molecular Genetics
 a former film maker, magistrate, and member ofthe HFEA’s independent appeals committee

 an infertility counsellor 9.
If the composition of a Japanese HFEA at any point

5. Last words
As far back as 2011, the bioethicist Masayuki Kodama described the PGT-M situation in Japan as follows:in time resembles the one that the British progenitor has
at the moment (and new nominations are made every
three years), even if it does not make any radical decision with regards to PGT-M, society can have greater
confidence that a broader range of voices have been incorporated into the making of the final decision. To put
it simply, in contrast to the current state in Japan
whereby people from all walks of life deliberate and the
JSOG ultimately delivers a verdict, with an HFEA-like
body, a diverse panel of people would deliberate, issuing its own decision at the end. Even if the decision it
arrives to is the same as the one that JSOG is currently
about to deliver, the former would still be seen as morelegitimate than the latter.

The reality is that the assisted reproductive medical
community in Japan is trapped between a rock and ahard place on the question of whether to expand theindications for PG[T-M] as a therapeutic method: it iscaught between patients who want to use this treatment and their supporters, who are trying to respondto these patients‘ wishes, and those who argue forcaution out of concern that PG[T-M] could be overused (commercially developed), as well as powerful
opposing groups that claim the selection of fertilized
eggs based on PG[T-M] results amounts to discrimination against disabled people. (Kodama 2011: 24-5,
see also his earlier work in 2006).

In addition to the issue of legitimacy, the question
also exists about the consistency of treatments for patients. In this respect, the benefit of adopting a British-

9

Soon after Kodama’s account of the stalemate
reached, another bioethicist Keiko Toshimitsu produced

HFEA. “Meat our Authority members”. http://www.hfea.gov.uk/about-us/our-people/meet-our-authority-mem
bers/. Accessed 2 November 2021.
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Silvia Croydon

even a more detailed documentation of the history of

doing poor work. In their view, the job of sifting for

struggle here towards finding middle ground on the is-years through piles of often contradictory evidence insue of PGT-M (2012, 2014). Breaking with this mode ofsearch of the elusive “truth” about the criminal case atanalysis hitherto of the state of affairs on this issue in

hand required an immense amount of patience andJapan, the present article has advanced the idea that ra-

brainwork, and the accusation that their rulings lacked

ther than attempting continuously to hammer out a con-“common sense” was uncalled for. Nevertheless, once

sensus between the two opposing sides in this debate, it

the lay judge system was implemented, many judges

might be more productive and suitable for JSOG tocommunicated experiencing liberation, commenting

lobby in parliament for a citizen-dominated regulatorythat they no longer had to worry about facing criticism

body modeled on the example of the British HFEA. As

from the media and the public at large for not handing

a way for JSOG members to overcome any aversion

down watertight judgements—the responsibility for thisthey might possibly have of seeing their power erode

now mainly rested with members of the public (Inouevis-à-vis that of a third-party body, it might be useful to

2008; Croydon 2016).

refer to the unanticipated sense of relief that their pro-

If a lesson could be extrapolated from the judges’

fessional counterparts in criminal justice — the Japa-

case for the benefit of JSOG and in relation to its strug-

nese judges — reported of having experienced as a re-gle to pacify its critics, then this lesson would be that it

sult of handing over in 2009 the responsibility of crimi-

might find it relieving to withdraw from the battle scene.

nal cases adjudication onto lay judges. To explain in

Indeed, instead of insisting on singlehandedly maintain-

greater detail, this transition, which took place after a

ing control of the PGT-M situation and thereby remain-

five-year preparatory period, was triggered by a se-ing in the crossfire from patients and disability/feminist

quence of high-profile exonerations whereby new evi-groups’ representatives, JSOG might be well-advised todence had emerged undermining former death penalty

focus on the merits of letting go of responsibility.

convictions (Foote 2014, 2015). From the moment theidea was introduced as a result in Japanese society that

Acknowledgements

the alternative model of criminal justice administration

The author wishes to acknowledge with gratitude thecould be adopted of relying on laymen, as the case in the

support of the Japan Society for the Promotion of Sci-

US and the UK, a sense of discontent and displeasureence for this research (Project No. 20K01446 & Project

spread within the courts. Several judges quickly con-

No. 21KK0221).

demned this proposed measure, arguing that it represents an unfair criticism of their work. It did not stand

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Received 19 November 2021
Final version accepted 29 March 2022