The supreme Court of Japan has overturned an earlier ruling that a child born after IVF using a dead man's sperm is legally the man's child. The child was conceived after the man's death from leukaemia in 1999, using his frozen sperm, and born in 2001.

Originally, when the child's mother tried to register the birth, the local government refused to allow it, on the grounds that the father had died more than 300 days before the birth date and the normal length of human gestation is about 270 days. Under the Japanese Civil Code, a child is not reconised as having been born in wedlock if it is born more than 300 days after the end of a marital relationship. The mother filed a lawsuit to have her son legally recognised as the child of his father. In November 2003, the first court ruled against the mother on the grounds of 'common sense' saying it was impossible to recognise the father-child relationship in such a case, and that there was little social awareness for acknowledging a deceased man as a child's father, even if his sperm was used. However, in July 2004, the Takamatsu High Court overturned the lower court's ruling.

Now, following an appeal, the Supreme Court has overturned the High Court decision, saying that this was not a parent-child relationship that the Civil Code had envisaged. 'No parent-child relationship in a legal sense can be recognisd, given the father died before she got pregnant and there is no possibility of the baby being dependent or receiving inheritance', said Justice Ryoji Nakagawa, who heard the appeal.

Some doctors believe that the ruling shows that regulation of this area of medicine in Japan lags behind progress in science and technologies available to help people have children. And they say it may present a challenge to doctors of reproductive medicine, as the field depends on voluntary self-regulation. Each institution is able to decide for itself what should happen to stored sperm when donors die. However, legislation on reproductive technologies, which had been planned for 2004, was shelved. A spokesman for the Health, Labour and Welfare Ministry said that 'though we believe some legislative steps are necessary, it is too early now because there is no national consensus'.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.