On 2 June 2020, a city government employee in Aichi Prefecture discovered the body of a baby boy inside a plastic bag in shrubbery in a park. The mother, age 21, was arrested four days later.
In May 2021, she was found guilty in court of failing to provide appropriate care and abandoning the newborn, and was sentenced to three years in prison, suspended for five years.
The young woman told the court that she was not allowed to have an abortion because she could not reach her former male partner to get him to sign a written consent form. The young woman is a former nursing school student. Did she have to leave nursing school because of these charges? We are not told.
According to Japan’s Maternal Health Act, an abortion can be performed without the consent of the ‘spouse’ in only three instances: when the spouse is dead, is not known, or cannot express an intention. The law has no provision for the case of an unmarried pregnant woman without a spouse, however. The Health Ministry said in 2013 that no consent is required in such a case. Hence, no consent from the partner was legally required in this young woman’s case, the court said. But was the hospital that refused her an abortion held accountable in any way? Apparently not. “The development leading up to the criminal act originated in the insufficient and insincere response taken by the father of the victim (the baby),” the court decision pointed out. The offending man, however, was not pursued, arrested, tried or punished either.
The article reports that Yukiko Saito, an associate professor of bioethics with Kitasato University, said based on interviews with obstetrician-gynaecologists (ob-gyn) and other information: “In many cases, doctors ask for written consent, which is not legally required, partly to guarantee payment and partly to avert the risk of being sued by the male partner after the abortion.” Similarly, an ob-gyn from western Japan said: “Doctors have no way to confirm if the circumstances of a pregnant woman constitute one of the exceptions provided in the law.” He therefore collects the permission as a formality (sic).
Last year in October 2020, another news source reported that a woman was refused an abortion after she was sexually assaulted by an acquaintance. She said that the doctors had told her: “You know him, so you should be able to get him to sign off.”
Isamu Ishiwata, the chair of the Japan Association of Obstetricians and Gynecologists told the publication: “We want to perform the abortions, but we can’t rule out the possibility that we will be sued by the male party.”
It seems this line of self-defence is taken by quite a few ob-gyns in Japan. However, we must ask: how many times has a Japanese ob-gyn been sued for terminating an unwanted pregnancy by the man involved in causing it?
The numbers of women who have been refused an abortion are likely unknown. However, these two cases highlight discrepancies and misconceptions on reproductive rights in Japan and the potential for gross discrimination involved in requiring the man’s agreement.
In the wake of this case, the International Safe Abortion Day Japan Project, an advocacy group that organises researchers, midwives and others, released a four-point list of requests to the central government, as reported by Kumi Tsukahara, a part-time lecturer with Kanazawa University. These requests include giving the widest possible publicity to the fact that an unmarried woman is entitled to have an abortion without the consent of the male partner, and another to abolish the legal provision that obligates the consent of the spouse.
An official with the Health Ministry’s Maternal and Child Health Division said, in response: “We will work with medical associations, and associations of obstetricians and gynaecologists, to better publicise concrete cases where no consent is required.”
New guidelines by the Ministry of Health, Labor and Welfare were published in March 2021 which declare that where it is difficult to get consent, the doctor may bypass spousal consent, which is otherwise still required under Japan’s Maternal Health Act.
This falls far short of ensuring that women with an unwanted pregnancy are never forced to continue the pregnancy. This is far from over.
SOURCES: Asahi Shimbun, by Chika Yamamoto, Etsuko Akuzawa, based on reports, 18 July 2021 ; UNILAD, by Saman Javed, 16 March 2021 ; Nikkei Asia, by Natsuki Oshirom 20 October 2020 ; PHOTO from GaijanPot Health Abortion in Japan