- The Washington Times - Thursday, December 18, 2003

AKASHI, Japan — A year after Yasunao and Yoko Kondo submitted paperwork to register their newborn twins for citizenship, the couple’s sons are still foreigners. As far as the government is concerned, the twins aren’t Japanese.

After years of trying to have children on their own, the Kondos, who are in their 50s, had gone to a California fertility clinic that introduced them to an egg donor and an American surrogate mother. In October of last year, the Kondos became parents of twin boys.

The government saw it differently. Japan has no laws on surrogate births, so officials ruled the boys are not the couple’s children.

The two sides are now in a legal fight over the couple’s parental rights — and are testing a legal system that made no provision for births using modern fertility techniques.

Yasunao Kondo, a slight, nervous man, says he and his wife are demanding full rights as parents and citizenship for their sons.

“We want this whole idea of the parent-child relationship reviewed,” says Mr. Kondo, 53, who wrote a book about California’s surrogacy laws while studying for a Ph.D. there and now teaches junior high school in Akashi, 270 miles west of Tokyo.

“We will probably lose. This is not a society that can be easily changed by ordinary people,” he says. “But is that a reason not to try?”

How their ordeal ends could sway Japan’s debate on surrogate births and affect thousands of childless Japanese couples who seek help from fertility clinics overseas every year.

Surrogate births involve removing an egg for fertilization and implanting it in another woman who carries the baby to birth. While such births are common in many developed countries, Japan is not known to have had one until May 2001.

After that, the Japan Society of Obstetrics and Gynecology set ethical standards restricting in-vitro insemination to married couples and opposing any surrogate births.

The government is now drawing up legislation that would outlaw surrogate births and impose criminal penalties, based on a Health Ministry panel’s recommendation this year. The panel also urged that egg and sperm donations be illegal.

Every year, about 12,000 Japanese babies — one in every 100 — are conceived through some sort of fertility treatment, according to government statistics.

Pro-surrogacy doctors and activists say a ban on surrogate births would severely limit the options for many childless couples, forcing them to continue seeking fertility help abroad. A ban also would undercut Prime Minister Junichiro Koizumi’s attempts to reverse the nation’s record-low birth rate, at 1.32 births per woman last year, they say.

“In reproductive-assistance treatment, the rights of the parents, family and other cooperating parties to make their own decision should be respected as much as possible,” Fertility Rights of Mothers, a Tokyo-based organization, said in a policy statement last month.

Advocates of a ban say a woman’s body shouldn’t be a reproductive tool. Surrogate mothers often sign on to earn money, not out of good will, they say.

“An overwhelming majority of the women around the world who offer to be surrogates are socially deprived. It’s a cruel abuse of women who give up their motherhood to make money,” says Dr. Hisako Watanabe, a Keio University medical school professor who was on the Health Ministry panel. “Just because other countries have legalized it doesn’t mean Japan should.”

With few Japanese doctors willing to offer surrogacy services, many couples unable to have children have gone to the United States, South Korea and other countries that have well-established practices.

Most couples who return with surrogate children are able to escape challenge from the government. But the Kondos were snared by a 40-year-old regulation that requires checks on children of couples over age 50.

“This is the first application the government has stopped for this, though there were probably cases like this in the past,” says Justice Ministry official Yoshikazu Nemura.

The Kondos had been trying to have children since marrying in 1986, but doctors told them complications with Mrs. Kondo’s uterus would make it difficult. They tried a fertility clinic in nearby Kobe, but the treatments failed.

Her husband began looking into surrogate births, and after finding that Japanese doctors only performed the procedure among family members, he contacted the Center for Surrogate Parenting in Encino, Calif. He said he and his wife ruled out adoption after talking with the center.

In August 1999, they flew to California. After hiring a woman as a surrogate mother, she was implanted with an embryo created using Mr. Kondo’s sperm and an Asian-American woman’s donated egg.

The twins were born Oct. 17, 2002, and under the surrogacy contract, which California’s laws recognize, the surrogate mother agreed to forfeit her parental rights.

Six days later, the Kondos applied for the boys’ citizenship through the Japanese Consulate in San Francisco and got tangled in Japan’s birth rules. The law presumes the woman who gives birth is the mother, and it considers children conceived from a donor egg and born to a surrogate to have been born out of wedlock.

The Kondos’ application was finally rejected Oct. 10, nearly a year after they filed the papers.

Mr. Nemura, the Justice Ministry official, says the government couldn’t recognize the couple as the biological parents. For now, he says, Japan regards the twins as American citizens, which birth in the United States bestows on them.

Without Japanese citizenship, the boys would be excluded from most public schools in Japan and would be denied other rights later, such as voting.

The Kondos could legally adopt the twins and apply for a change of citizenship through immigration authorities, but Mr. Kondo hopes the government will give in and accept them as the parents. He has hired a lawyer to negotiate with Justice Ministry officials.

Ministry officials refused to comment on the talks.

Mr. Kondo says he and his wife regularly call the surrogate mother and send her photos and reports on the boys, who are now almost able to walk.

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