Japan Times, by Kathleen Benoza, 2003, Septmber 28
Main Texts:
As the world observes International Safe Abortion Day on Thursday, there is growing focus on the movement in Japan for safe and accessible abortion practices. The recent approval of the first abortion pill in the nation offers a glimmer of hope, but archaic rules governing consent — rooted in Japan's eugenics history — persist, casting a shadow on safe access.
The 1996 Maternal Health Act, which includes the spousal consent law, evolved from the 1948 Eugenic Protection Act, which opened the path for legal abortion. The former abolished eugenic provisions to create the law Japan follows today.
The current law stipulates that abortion must be carried out in the early stages of pregnancy with the consent of one's spouse.
The health ministry approved the country’s first abortion pill, the Mefeego pill pack produced by British drug manufacturer Linepharma, in late April, providing women in early pregnancy with an alternative to a surgical procedure. The ministry says the spousal consent law is also applicable to abortion pills.
Among the countries with legal abortion, 15 require spousal consent for induced abortions, according to a World Health Organization database. Many of those nations have strong religious influences.
In Japan, exceptions to the consent rule are granted in situations where a spouse's identity is unknown or they are unable to convey their intentions.
There is no provision in the law for unmarried women. The health ministry has clarified that a partner's consent is not required for unmarried women, women who can prove their marriage ended because of domestic violence or those impregnated through rape.
Despite this, because of misconceptions and concerns regarding legal consequences, many doctors continue to insist on obtaining a man's consent.
In some cases, the policy has led to tragedy.
In 2021, a 21-year-old former nursing school student received a suspended prison sentence for leaving her newborn in a restroom at a park. During her trial, the woman said that a hospital demanded male consent for an abortion, which she couldn't obtain.
As the health ministry's assurances are not legally binding, clinics are allowed to have their own practices, especially because only designated doctors appointed by the medical associations in each prefecture can perform abortion procedures at specified medical facilities, said Kumi Tsukahara, director of the Reproductive Health Rights & Literacy Institute.
She argues that this system allows doctors to act in their own interests and engage in practices that should not be permitted under a legitimate framework.
“As long as doctors prioritize avoiding potential issues, the requirement for spousal consent will remain,” Tsukahara said.
Some concepts from the old law, including the requirement for spousal consent, remain unchanged to this day, said Yoko Matsubara, a professor at Ritsumeikan University who specializes in the history of science and bioethics, with a focus on eugenics.
"Doctors have had spousal consent ingrained in their practices,” Matsubara said. “Factors like women's rights or respecting human rights, those elements are not included in the law.”
Matsubara said she believes doctors want to support women with such a life-changing decision, but bypassing the conditions specified in the Maternal Health Act could potentially lead to imprisonment.
Medical practitioners can be imprisoned for up to seven years under the law if they don’t obtain spousal consent. Under the penal code, women who have an abortion without spousal consent or take medication to induce their own abortion can face up to a year in prison.
Due to these provisions, abortion is fundamentally considered a crime, Matsubara said. But with the consent of one's spouse, abortion in the early stages of pregnancy is possible with no questions asked, she said.
When it comes to laws concerning women, lawmaker-initiated legislation is common, said Misako Iwamoto, political scientist and expert on legislative processes in Japan, adding that amending the Maternal Protection Act would require approval by a majority in parliament.
The most recent government report shows that about 16% of lawmakers are women.
Iwamoto said that politicians in Japan tend to place the responsibility for abortion primarily on women, viewing matters such as spousal consent and birth control pills as connected to women's sexual agency.
In July, Japan reviewed recommendations received during the Universal Periodic Review by the United Nations Human Rights Council, which assesses human rights in all U.N. member states every 4½ years.
During the assessment, Japan rejected recommendations both involving the Maternal Health Act and the abortion crime law. Japan's representatives cited the need for thorough parliamentary discussions to amend the Maternal Health Act and emphasized the importance of protecting the fetus as a biological entity before making a decision to abolish the abortion crime law.
"I believe there is a need to change the law to eliminate the abortion crime and establish a law that clearly outlines the regulations doctors must adhere to in abortion procedures,” Matsubara said.
