- Yutaka Tejima
Institute of Social Sciences, University of Tsukuba,
Tsukuba Science City 305, JAPAN
As Professor Shinagawa pointed out properly, there is a special statute that immunizes criminal liability in spite of the existence of punishment clause in the criminal code of abortion (Criminal Code of Article 212-216). On the other hand, although AID has been done since at the end of 1940s in Japan, discussions regulating medical reproductive technology that create human beings have not been sufficient in Japan. There exists only voluntary self-regulation of doctors. To be sure, the technological advance is so rapid that it may be impossible for lawyers to catch up with such innovation. Some academics of the law field have addressed this technology, but official reaction, for example whether to legislate some special provision is necessary or not, has not been done at all. As we increase the number of children, the argument is whether such technology should be recommended or not, or lawful or unlawful. As a result, how many children born in Japan every year or what institute offers such technique is not clear for lay people. Who is one's father, or who are one's relatives are very important affairs for everyone for several reasons, and I do not think it is appropriate to leave such important affairs only to the ethical reaction of the medical profession. I do know that many doctors devote themselves for the sake of patients, of course. Nevertheless, as a lawyer's habit or behavior, I feel ill at ease without any legal provision in such an important field. No provision for such technology may make the newborn child's legal status unstable. This is true because many countries tried to provide a special law concerning AID, and some countries have legislated already in this field. As I discuss later, if misunderstanding of law is one of the reasons for no provision, it must be correct. To provide a special law is not a definite resolution to this problem, but I think it is a better situation at least than now-- nothing.
Although the importance of the discussion whether it is necessary to regulate medical practice by law is well recognized in Japan too, such discussion is not accepted by medical persons properly. It is easy to understand that medical persons tend to think that once legislation has been done, a uniform attitude must be required, and flexible correspondence according to patient's personality would be impossible. The attitude of the final report released by Ministry of Health and Welfare on Informed consent in Japan must be stand in a similar context. I think such way of thinking about the law includes misunderstanding. Law must be interpreted, and the provision that interpretation is unnecessary is quite rare. In addition, the opposite conclusion may come to appear with the same case in the district court, high court or Supreme Court. Although the Law draws the general framework of medicine, it does not always order doctors to submit every aspect of their routine practices. But it is worth thinking why medical persons think like that. The following examples may be behind such reasoning.
1. Medical laws that medical persons are familiar with include police orders and functions; once he or she finds specific disease patients, doctors have a duty to report to administration ; or quarantine (isolation);. Although some of such provisions cannot be supported from the contemporary standpoint of human rights, some of them are still in force. For example, Leprosy (Hansen's Disease) Prevention Act was at last repealed recently which includes many inhuman provisions after the very long terrible history.
2. Medical malpractice law pursues the legal responsibility of medical persons. It is outside control over medical persons. It is often said that some famous judgments appear far from standard medical practice.
3. The brain death problem at present stops the execution of transplantation from brain death donors. Even though transplantation doctors want to practice according to patients will, brain death problems work as a barrier against patients who are waiting for transplantation, and this can be seen as lawyers stopping such necessary medical treatment. But we should not ignore that brain death problems may be successful in Japan in a sense that many lay Japanese people know well that there are difficult problems with brain death.
We lawyers are apt to only advocate that medical advances often include legal problems, and try to control medical persons according to legal usage. I think it is a right approach in itself, but at the same time we lawyers also should do self-examination whether we have been tried to understand the nature of law well.
As you can see, like the change from the Eugenic Protection Law to the Mother Body Protection Law, I suppose Japanese medical law is in the process of changing. To make doctors and lawyers cooperate and keep mutual close relationships are necessary in such a situation.