Parental quandary

Want to be a parent? Just make sure you are in your appropriate gender role when the child is born. Otherwise, if you transition to another sex, you can’t be recognized as such. At least, that’s what the rule is now in Japan.

In a decision reported by only a few press sources (and citing no case title), the Japanese High Court (presided by a Judge Toshikazu Kino) is reported to have made a distinction between a father who was in his traditional male body when his partner gives birth to their child, and one who underwent a sex change prior to the birth. In the first case, he is recognized as a parent. In the second case, he isn’t.

Does that make sense to you?

The facts are even more complicated than that. See, we’re talking about just one person. We are not talking about two different fathers trying to claim parentage in separate cases with distinct sets of facts. This case involves just one parent, whose spermatozoa was used for two separate daughters, and on one mother. The DNA tests prove that she was the genetic parent.

The only difference was that the first daughter was born while he was still physically a male, and the second daughter was born when the sperm-donor had already made the decision to shed his masculinity, and then went on to register a gender change in the official register (yes, in Japan, one is allowed to register a sex change officially).

In this single decision, the Japanese jurists arrived at the juridical miracle proclaiming the same person as “parent” in the case of first child, and not a parent in the case of the second child. The rationale? “There is currently nothing in Japanese law to recognize her parental rights.” Go figure.

How will that legal recognition operate in real life? The parent will show up at the household and claim visitation rights for the first daughter, and the second daughter will just look on while the older sibling gets affection and attention? All the while knowing that this is the very person who “sired” her (I’m running out of gender neutral terms)?

How heart-breaking. The same goes for the parent, who is allowed to spend time and bond with the first daughter, but then, in the case of the second daughter, would be barred from access. Would this complication then result in the first daughter being able to inherit the wealth of the parent, but the second daughter would not? How unjust and unfair.

Sometimes the law ends up getting tangled on technicalities, and it leads to seriously strange results. Judges get to rule based only on what’s available to them under the law, and perhaps, the legislature hadn’t been proactive enough to pass laws that would anticipate exactly these situations. After all, how many Japanese folk get sex changes?

A quick google check resulted in a Japan Times news report citing less than a thousand people every year applying to change their gender in the official register. And out of those people, how many end up becoming parents? With so few numbers, there probably wasn’t enough impetus for the legislature to make sure this exact situation was covered. And so now we are left with the bizarre animal of two daughters living under extremely different circumstances (sounds like a documentary waiting to happen).

If this had happened in the Philippines, the judge might have been tempted to rule differently, using “equity” as the guidepost. Equity is a frequent tool employed by our judiciary, especially in cases where the law does not squarely fit the facts. Rather than apply an inappropriate law leading to unjust or inequitable results, a judge will invoke the rule of equity, and hand down a ruling that is tempered in accordance with the facts presented before the court (I am, of course, assuming a compassionate judge will handle the case, and not a transphobic one).

But equity was apparently far from the minds of the Japanese High Court. And so, two Japanese girls born to the same parents will grow up two very different lives. How fascinating to see where their paths will take them.