Eugenic Laws and the Criminalization of Abortion in Japan

Features : Sexual and Reproductive Health and Rights

SOSHIREN, freelance writer and editor; part-time university lecturer
[The article below is the same as the article that appears in the eighteenth issue of the CGS Newsletter.]

The prohibition of abortion has prevailed in the Penal Code of Japan for about 110 years. SOSHIREN's Yukako Ohashi discusses the history of Japan's problematic abortion and eugenic laws, which fail to recognize a woman's right to self-determination and autonomy over her own body.

The stipulation that "when a pregnant woman causes her own abortion by drugs or any other means, imprisonment with work for not more than 1 year shall be imposed" has remained intact in Article 212 of Japan's Penal Code since 1907.

Abortion refers to the artificial termination of a pregnancy. Many people may be shocked to learn that abortion is still illegal in Japan, except in certain situations as stipulated by the Maternal Protection Law (or the Eugenic Protection Law until 1996). Indeed, until 1948, there were quite a few abortion-related arrests. In 1936, the arrest of the actress Akiko Shiga caused a major scandal. The lm director who was the father of her child continued to make movies without any rami cations, whereas Shiga was convicted of the crime of abortion and ordered to serve a suspended prison sentence.

Moreover, a person who performs an abortion can still be charged under Articles 213-214 of the Penal Code, and a person who performs an abortion without the consent of the pregnant woman can be charged under Articles 215-216. Looking back, we might ask why they didn't just use contraception, but contraceptives were illegal in Japan before the Second World War. Women who were imprisoned under these laws included Shizue Kato, a birth-control activist who was friends with Margaret Sanger, and Urako Shibahara, a midwife who performed abortions for women who came to her out of desperation because they had a violent husband or too many children.

In advancing its war of aggression in Asia, Japan promoted a population policy with the slogan umeyo, fuyaseyo (give birth and multiply). Families with many children were publicly commended and rewarded, and women were seen as a kodakara butai (fertile womb battalion), who would give birth to the Emperor's "children."

After Japan's defeat in the war in 1945, women were finally granted the right to vote and the Constitution of Japan was enacted to replace the Constitution of the Empire of Japan (Meiji Constitution). Article 14 of this new constitution provides that "all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin." The adultery law in the Penal Code (which only penalized wives who engaged in sexual intercourse with a man other than their husband) was also abolished. But what happened to the anti-abortion laws?

The objective of the 1948 Eugenic Protection Law, which permitted abortions in certain exceptional circumstances, was "to prevent the birth of inferior offspring and to protect the life and health of the mother." The law reinforced the wartime eugenics philosophy of increasing the number of good soldiers and reducing the number of "useless mouths," that is, people with disabilities and illnesses. In fact, its objective, "to protect the life and health of the mother," could also be read as "to value only those women who are viewed as potential mothers," which is far removed from the idea of reproductive rights and freedom in the women's movement of the 1980s. When the Eugenic Protection Law was revised as the Maternal Protection Law in 1996, the eugenics reference to preventing "the birth of inferior offspring" was scrapped, but there has been no state investigation into or compensation for human rights abuses under the old law.

Even today, the state's attempt to control the quality and quantity of the population prevails in the Maternal Protection Law and the continued criminalization of abortion. Japanese law does not reflect the idea of reproductive health and rights, including the freedom of sex and sexuality, one's right to choose whether or not to have children without interference from the state or a third party, and the provision of the relevant information, means and support. Rather, in recent years, in order to counter the declining birth rate, women are being urged to have children and there is less support for those who choose not to do so. By continuing to misuse the word "woman" and setting numerical targets for population growth, the current administration is, without doubt, lacking a commitment to human rights.