Artificial Interruption of Pregnancy Law of
the Problems of the Motherhood Protection Law
The Eugenic Protection Law of Japan (EPL) was partially revised on September 26, 1996 and its name changed to the "Motherhood Protection Law of Japan" (MPL) tentatively. The EPL was enacted in 1948, and thereafter, two revisions to the act were submitted to the Diet, however, they were shelved and eventually withdrawn each time. As a result, the policy of the EPL remained in force for 48 years until the MPL was passed in 1996. The revision in 1996 was based on the understanding that the "Eugenic Protection" in the EPL led to "Discrimination against the Disabled".
I. Background of the EPL and movements for its revision
In the defeat of World War II, the land area on which the Japanese population lived was reduced by 40%. Japan's population amounted to 84 million in 1948 swelled by the number of Japanese repatriated from overseas. The "Marriage Boom" and following "Baby Boom" accelerated further the increase of population. Even through the serious economic hardship and the food shortage existed, the slogan "Be fruitful and multiply", -- an adaptation of the biblical phrase - continued to be still used even after World War II.
Therefore, illegal artificial abortion had become common and the life and health of mothers were often in risky situation. Guidance on effective methods of contraception could only be understood by the educated, and the pressure of population growth threatened the Japanese quality of life. In addition, after World War II, the number of persons who had a mental disease, or were mentally deficient increased as was well known as a global phenomenon at the time.
In other words, there was a trend of reverse selection, and it was thought imperative to stop the genetic deterioration of the quality of Japanese people by preventing the increase in the number of persons who had in born error.
Also, there was a need to protect the life and health of mothers, who had to give birth their babies under serious condition in burnt down cities.
The artificial abortion performed after the enactment of the EPL were useful as a method to prevent unwanted births, and thus decrease of population.
This was added as positive effect to by the commencement in 1952 of the "Family Planning Campaign to Promote Better Methods of Contraception", and by 1961 the birthrate had stabilized to 16.9 which was similar to the level of Western countries.
This figure shows that the purpose of the EPL had been accomplished.
However, from 1959 a group of midwives collaborating with the campaigners for adequate methods of contraception started a movement criticizing the EPL designated physicians claiming that the number of deliveries was being seriously decreased by the artificial abortion.
In a resolution, they made the following statement: "We request the relevant authorities to take the necessary action to prevent the artificial abortion which is inconsistent with the policy of the Family Planning Campaign."
Further, the religious organizations (Catholic and Seicho-No-Ie) emphasizing their specific sense of values, "respect for life", joined the group of midwives and started radical action for the revision of the EPL.
This was the background to the bill submitted to the Diet in 1972 proposing revisions to the EPL incorporating i) the deletion of the "economic viewpoint", which was defined as reasonable grounds for the artificial abortion, and ii) the addition of "definition of the severe abnormality which leads sprotsnesus death of fetus".
Although the bill was approved in the Lower House, it was shelved in the House of Councillors and withdrawn.
With respect to the deletion of the "economic viewpoint", "The League of Members of the Diet Supporting Respect for Life" was established in the Liberal Democratic Party (LDP) in 1982 ("Religious League").
The core members of this group were the members of the Diet who belonged to Seicho-No-Ie.
The group requested the deletion of the"economic viewpoint" from the EPL. In opposition to the Religious League, another league named "The League of Members of the Diet for the Promotion of the Welfare of Motherhood" was established by women members of the Diet ("Women's League") and they disagreed with the revision.
In response to these movements, the LDP organized the "Small Committee for the Examination of the EPL" and studied the EPL.
As a result, the LDP reached the conclusion that "further examination is necessary", then the government abandoned the bill to revise the EPL.
The opinion that "Women have the right themselves to determine whether they should give birth to a child or not" advanced by the Women's League became a starting point for women to assert their rights or to create strong groups in the women's organizations.
II. Background of the revision of the EPL
The following events triggered the movement toward the revision of the EPL enacted in 1996.
(1) In 1994, at the International Population Congress held in Cairo, the disabled group of Japan introduced the EPL and criticized the compulsory eugenic operations performed on persons who were mentally deficient.
Since the foreign media took up the issue, compulsory eugenic operations were criticized worldwide.
(2) In 1993, the "Standard Law for the Disabled" was enacted.
According to this law, it was strongly requested that "Eugenic Protection" and "Discrimination against the Disabled" in the EPL should be revised.
(3) In documents such as i) "Activity Plan" adopted at the above mentioned Congress in Cairo guaranteeing women's right to good health throughout their life from the viewpoint of reproductive health and rights, and ii) "Principles of Activity" adopted at the International Congress for Women held in Beijing in 1996, the domestic policy to be carried out by each government was clearly defined.
Since the Japanese government agreed to follow the recommendations in the documents, a reorganization was needed to make them part of domestic policy.
III. Discussions for the revision
Following the International Population Congress held in Cairo, the women members of the Diet held meetings to study the EPL and reproductive rights, also, the disabled group of Japan handed petitions to the Minister of Health and Welfare demanding revision of the EPL. As a result of these movements, the "Proposals for the partial revision of the EPL" made by the government party, the LDP, and the "Proposals for the whole revision of the EPL" made by the supra-partisan women members of the Diet became subject of discussion.
(1) Proposals for the partial revision of the EPL
The points of the proposals made by the LDP were i) to revise the title of the law, the "Eugenic Protection Law", ii) to revise the purpose of the EPL, that is, "to prevent the increase of inferior descendants" and iii) to delete the definitions for compulsory eugenic operations, and thereafter, iv) to have ongoing discussions about the other problems of the EPL, for example, "economic viewpoint" and "definition of indication due to fetal condition".
These proposals became the basis of the revision of the EPL in 1996.
(2) Proposals for the whole revision of the EPL
The points of the proposals made by the supra-partisan women members of the Diet and NGO members were i) to revise the title of the law to the "Law for the sterilization and the artificial abortion, etc." or the "Law for protection of health relating to pregnancy, etc.", ii) to establish advisory organizations for the purpose of maintaining health relating to reproduction such as safe contraception/sterilization/artificial interruption of pregnancy, safe pregnancy, delivery or menopausal syndromes, iii) to take measures to prevent sexual violence or to assist recovery from such violence, iv) to respect women's right to decide regarding artificial abortion by abolishing the crime for the artificial abortion and deleting the "consent of the spouse" for the artificial abortion.
IV. Reaction of the "Association of Japan Obstetricians and Gynecologists "
(JAOG President Prof. em. Shoichi Sakamoto)
In 1991, JAOG anticipated the revision of the EPL, and it had established the "Advisory Committee for Review of the EPL" which was led by the Chairman, Dr. Shoichi Sakamoto and was reviewing the problems of the EPL.
At the end of 1995, to delete the provision for the "Eugenic Protection" from the EPL a sub-committee of the LDP, the Social Division, decided to ask professional organizations to investigate i) whether there are countries which have laws incorporating "Eugenic Protection" relating to generative medical treatment, ii) is there an international consensus about the artificial interruption of pregnancy, or iii) in what cases are the artificial interruption of pregnancy or eugenic operations permitted in other countries.
JAOG was put in charge of this investigation. JAOG organized a study group and reviewed the relevant laws of other countries. In March, 1996, the group submitted a report titled "Report on the Study of the EPL" to the Social Division of the LDP.
The above mentioned report submitted by the "Advisory Committee for Review of the EPL" and the "Report on Study of the EPL" were used as references for the preparation of the "Proposals for the partial revision of the EPL" by the Social Division of the LDP in May, 1996.
Accordingly, JAOG had no objection against the proposals made by the Social Division of the LDP and it worked to explain the policy of the proposals to the persons concerned.
However, regrettably, since this proposal contained only part of the "Report of the Advisory Committee for Review of the EPL" put forward by JAOG.
JAOG requested the addition of the supplementary provision that the issues of the "economic viewpoint" and "definition of indication due to fetal condition" should be left for further discussion.
JAOG had keenly desired, to the extent possible, to revise the law which was clearly behind other advanced countries.
This was to avoid the fate of the previous revision bills submitted to the Diet which were approved in the Lower House but shelved by the House of Councillors and withdrawn.
Needless to say, it was desirable that the problem areas of the EPL should be revised once and for all, if possible.
Fortunately, the following supplementary resolutions were adopted, under which JAOG intended to prepare proposals which could be the basis for public discussion.
Supplementary Resolutions for the Proposals for the Partial Revision of the EPL adopted by the Welfare Committee in the House of Councillors (June 17, 1996)
The government should take appropriate action to address the following matters:
On the revision of the EPL, the government shall make complete analysis and shall take proper actions to secure women's health from the viewpoint of health and rights relating to sex and reproduction based on the "Activity Plan" adopted at the International Population Congress of the United Nations and the "Principles of Activity" adopted at the 4th International Congress for Women.
The government resolved the above.
V. Outline of the revision
The key points of the revision made in 1996 are the deletion of "Eugenic Protection" and "Discrimination against the Disabled" resulting from "Eugenic Protection".
In Article 1 of the EPL which defines the object of the law, the following changes were made:
The object of this Law is to prevent the increase of the inferior descendants from the eugenic point of view and also to protect the life and health of the mother.
The object of this Law is to protect the life and health of the mother by defining the rules with respect to the sterilization and the artificial interruption of pregnancy.
The word "Eugenic Operation" is changed to "Sterilization". In addition, the eugenic operation for prevention of hereditary diseases or the compulsory operation on a person who has psychopathies without consent were abolished.
Accordingly, the cases to which sterilization can be applied are limited to cases where i) "the life of the mother is endangered by conception or by delivery" (defined in Article 3.1.1) and ii) "the mother has several children and her health condition seems to be seriously affected by each delivery" (defined in Article 3.1.2).
As to the artificial abortion, the "prevention of hereditary disease" was deleted from the cases to which it applied.
Thus, the persons to which the artificial abortion can be performed were limited to cases where i) "a mother whose health may be affected seriously by continuation of pregnancy or childbirth because of physical or economic reason" (defined in Article 14.1.1) and ii) "a person who has conceived after being subjected to sexual violence or threat or while being incapacitated and unable to resist or refuse" (defined in Article 14.1.2).
Further, "Eugenic Protection Commission" which had investigated the reasonableness of compulsory eugenic operations, and "Eugenic Protection Consultation Office" which gave advice on family planning or issues relating to the heredity were abolished in the MPL.