Waseda University Institute of Comparative Law

     In Japan, a long-used practice exists whereby putative parents take a newborn baby home shortly after the baby is delivered by the birth mother and raise him/her as their own legitimate child (i.e. as a natural or biological child) by privately filing a birth registration application with a public authority, without pursuing a formal adoption process or filing the required deed of adoption. This practice is called "Adoption at a Bed of Straw after Delivery (wara no ue kara no yōshi)." In a society like Japan, where a particular emphasis is placed on consanguinity, the convention of "Adoption at a Bed of Straw after Delivery" has been utilized as a white lie to maintain a formal natural parents-child relationship on the family register, while concealing the "foster parent-child relationship (nasanu naka)" from the child and the general public. Although Paragraph 3, Article 49 of the Family Register Law as amended after World War II prescribes that newborn medical records which are prepared by a medical doctor or maternity ward nurse who attends the birth must be attached to any birth registration application to register the baby as a legitimate child, it is nevertheless still believed that the practice of facilitating false registration as a legitimate child by means of false newborn medical records prepared by an arguably good Samaritan doctor, etc., has not ceased to exist. Needless to say, even though a putative legitimate child may be successfully registered as a natural child in the family register through the loophole of "Adoption at a Bed of Straw after Delivery," the baseline principle is that because a natural parent-child relationship can only be recognized where there is a natural bond of consanguinity, he/she cannot become a natural child. On the other hand, where putative parents live with a child under the same roof for a long time as if he/she were their child and their intention to adopt him/her is apparently declared on the family register, it would be destructive if we were to be forced to deal with such a case by holding that such an application is null and void in all respects.

     With respect to the issue of whether a false application to register as legitimate the birth of a child who has been the subject of an "Adoption at a Bed of Straw after Delivery," which is contrary to legal rules, may instead be recognized as a deed of adoption, courts have been consistently reluctant to recognize such an argument. This line was followed in a notable case decided by the former Supreme Court of Japan (Daishin'in), for which the citation is Judgment of the former Supreme Court, Nov. 4, 1936 (Minshū, vol. 15 at 1946). The Supreme Court of Japan has also [opined that even in a case where a de facto parents-child relationship had continued for a long time, in light of the formal requirements for a deed of adoption and the mandatory nature of adoption law, such a relationship was null and void (Judgment of the Supreme Court, Dec. 28, 1950 (Minshū, vol. 4, Issue 13 at 701)); Judgment of the Supreme Court, Dec. 22, 1974 (Minshū, vol. 28, Issue 10 at 2097); Judgment of the Supreme Court, Apr. 8, 1975 (Minshū, vol. 29, Issue 4 at 401). Turning to scholastic exposition, the fierce debate that has taken place has pitted opponents against proponents: opponents argue that this type of relationship should be treated as null and void because of the formal requirements for a deed of adoption, the importance of the compliance monitoring function of the application submission process, the fear that adoption decree requirements would be circumvented in the case of the adoption of a minor, disregard for the requirement to become adoptees or dopters as a couple if one party is married, fear of the occurrence of incestuous marriage, etc. Proponents argue that such a claim should be honored based on the doctrine of conversion of null and void action into otherwise effective action (mukō koui no tenkan), the fact that the consent of the natural parents, in their capacity that entitles them to give approval on behalf of an adoptive child, is secured and their concurrent intention to establish a parent-child relationship can be ascertained, and the fact that a family register application, albeit not genuine, is filed with a public authority. Amidst such wide-ranging debate, some commentators have argued that if a de facto adoptive parents-child relationship continues for a long time, there may be a case for raising an estoppel against any attack on the de facto adoptive parents-child relationship where such an attack constitutes an abuse of rights or is contrary to equitable principles.

     In the wake of such case law and scholarly exposition, the Supreme Court of Japan recently delivered a judgment setting aside the claim made by a third party requesting a declaratory judgment to confirm the non-existence of a genuine parent-child relationship between the defendant, a putative legitimate child, and her parents who had passed away. In this case, the court found that they had continued a de facto parents-child relationship under the same roof for as long as 55 years and that there was no reason at all to blame or attach culpability for a de facto adoptive child, opining that if the claim for a declaratory judgment confirming the non-existence of a parents-child relationship between the defendant and her parents were allowed, the defendant would suffer significant emotional and economic loss, the natural status quo in the lives of the interested parties would be broken at a single blow, and that given the fact that there was no possibility of the defendant entering into a deed of adoption and obtaining status as a legitimate child de novo because the de facto adoptive parents had passed away, and in light of the motives and objectives, etc., of the third party in making the claim for a declaratory judgment to confirm the non-existence of a parents-child relationship between the defendant and her late parents, the claim could not be allowed, as such conduct amounted to an abuse of rights (Judgment of the Supreme Court, July 7, 2006 (Minshū, vol. 60, Issue 6 at 2307)). Again, quite recently, the Supreme Court of Japan has rendered a judgment to the same effect. In that case, the putative adoptive parents, Korean nationals who lived in Japan, had taken home a young boy accepted by a foster home and with whom they had no kinship ties, by way of "Adoption at a Bed of Straw after Delivery," filed a birth registration application to register the boy as their natural child, and continued to live as natural parents and child for more than 30 years. When a question of intestate succession arose, the interested parties reached an agreement whereby specific assets forming part of the estate would be distributed based on the shares of the respective heirs, but some parties, in order to take a more advantageous share, abruptly began to claim that a parent-child relationship did not exist between the decedent and the defendant. The court held that the claim could not be allowed as it amounted to an abuse of rights, and remanded the case to the lower court which had originally considered the case for further deliberation (Judgment of the Supreme Court, March 18, 2008, posted on the website of the Supreme Court of Japan). While the doctrine of possession d'état typically found in France, etc., is not recognized in Japan, we anticipate the emergence of new issues surrounding the parents-child relationship arising from artificial insemination such as through surrogate mothers, etc., and that the judgments rendered by the Supreme Court which have given relief to adoptees by "Adoption at a Bed of Straw after Delivery" based on the doctrine of abuse of rights will exert seminal influence on such cases.