The crime of abortion in Japan

While doing some research work for a local professor of Japanese law, I came across an interesting statistic: there was one arrest in 2003 for the crime of abortion. This piqued my interest, so I decided to go off on a little tangent and figure out what this crime entails. Here’s my Americanized translation of the Criminal Code:

Chapter XXIX. Crime of Abortion

§ 212. Abortion. A pregnant woman who commits an abortion using pharmaceuticals or another method shall be subject to imprisonment of no more than one year.

§ 213. Consensual Abortion; Death or Injury Thereby. A person who causes an abortion while employed by a woman, or with her consent, shall be subject to imprisonment of no more than two years. A person who kills or injures the woman thereby shall be subject to imprisonment of no less than three months and no more than five years.

§ 214. Abortion In The Course Of Practice; Death or Injury Thereby. A doctor, doctor’s assistant, pharmacist or seller of pharmaceuticals who, while employed by a woman or with her consent, causes an abortion shall be subject to imprisonment of no less than three months and no more than five years. A person who kills or injures the woman thereby shall be subject to imprisonment of no less than six months and no more than seven years.

§ 215. Non-Consensual Abortion. A person who causes an abortion without being employed by a woman or without her consent shall be subject to imprisonment of no less than six months and no more than seven years.
2. A failed attempt of the above crime shall also be punished.

§ 216. Death Or Injury By Non-Consensual Abortion. A person who kills or injures a woman through the commission of the above crime shall be judged as having committed either the above crime or the crime of mayhem, whichever is more serious.

Abortion was legalized in 1948, decades after the Criminal Code was enacted. Some characterize this as a victory of an emerging feminist movement in Japan, but the truth is a bit darker, and pretty darn obvious from the abortion statute’s original title: the Eugenic Protection Act (優生保護法). Its stated purpose: “To prevent the birth of progeny which are undesirable from a eugenic standpoint, while protecting the life and health of mothers” (優生上の見地から不良な子孫の出生を防止するとともに、母性の生命健康を保護すること).

Certainly attitudes were different back then. This was at the peak of the Japanese government’s long-running policy to prevent people with leprosy from procreating. Under this policy, “male patients had to be vasectomized before they were allowed to marry, and female patients were enforced to have abortion and even infanticide.”

In 1996, the statute was given a new name: the Mother’s Body Protection Act (母体保護法). It’s been clipped and amended so many times that it’s hard to parse, but basically the rules are:

• Abortion becomes absolutely illegal at the point when the fetus is viable outside the uterus. (Technically, this is because the abortion statute ceases to apply at that point, and the Criminal Code takes over.) The Health Ministry decides when viability occurs, and has changed its mind on the subject several times. Its current verdict is after 23 weeks (props to Japanese Wikipedia for providing an easy link).
• Abortion must be performed by a doctor specially licensed by the prefectural government.
• Abortion can only be performed:
  1. When the health of the mother would be threatened, either physically or economically (define the latter yourself), by carrying the child to term, or
  2. When the child was conceived through violence or intimidation, or
  3. When the child was conceived through fornication, and at a time when the mother was unable to resist or reject the advance.

This is all very interesting to someone who comes from the land of Roe v. Wade and the notion that abortion is a right. But then again, you can kind of see the loophole-ability of the abortion law. How easy must it be for the mother to lie about the circumstances surrounding the conception? And how many mothers could invoke the economic harm provision?

I’ll leave you with some factoids from a medical journal abstract on the subject:

In one case in 1988, when the fetus of a 16-year old girl was aborted in the 25th week of pregnancy and left unattended although alive, the doctor was indicted and punished, although the probability of survival of the child was estimated at about 50%.

Since 1955, when the abortion rate was the highest (about 1,150,000 abortions), the number has been decreasing steadily. In 1991 the abortion rate was 13.9/1000 women of reproductive age (15-50 years); however, great differences existed between prefectures (6.4-26.0/1000).

It is alarming that the rate of abortions has increased among women under 20 years of age and at later phases of gestation. … Unquestionably, the abolition of the requirement in 1952 mandating that the abortion seeker undergo an examination by two doctors has liberalized the abortion law. However, many young pregnant women who need help do not get adequate support and counseling and may end up in prostitution.