Category: 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.

Practicing law as a foreigner in Japan is riddled with regulatory issues. Technically, you’re not supposed to handle legal cases unless you’re admitted to the Japanese bar. And while you can be admitted to the Japanese bar by virtue of being a lawyer in a foreign state, you become a gaikokuho jimu bengoshi or “foreign law attorney,” and you’re only technically allowed to advise on your home state’s law.

This wasn’t always the case. Until the late 1950s, a foreigner could be admitted to practice law in Japan by becoming a junkaiin or “quasi-member” of the bar association, which required special permission from the Supreme Court, but gave the foreign lawyer all the privileges of a Japanese lawyer. The junkaiin admitted at the time of the system’s abolition were the only foreigners allowed to practice law in Japan until the mid-80s (with the exception of Thomas Blakemore, a nutter who managed to pass the bar exam in Japanese).

There are only four junkaiin still alive today. Last time I checked last year, there were six! So we’re watching an interesting piece of legal history fade away with time. Here are the four who are still around to tell their stories:

JAMES ADACHI

James Shogo Adachi (photo, right) is a partner in the Tokyo law firm of Adachi, Henderson, Miyatake & Fujita. It looks like a small firm, as it only has four attorneys at present, but it has trained many of the top corporate and commercial lawyers working in Japan today (including the managing partner of the firm where I once worked).

Adachi was president of the American Chamber of Commerce in Japan in the early 1970s. Now, he is essentially retired and lives in San Francisco.

His late wife Barbara (who died in 2005) is also an interesting figure. She was born in Harbin before the war, as her father was managing Citibank’s operations there, and she spent most of her youth in prewar Tokyo, leaving for college in the US just in time to miss World War II. She came back in 1946 to work for the occupation government and stayed in Tokyo until her death, becoming prominent in the local foreign women’s community. She was also a bunraku (traditional puppet theater) fan, and donated a massive bunraku library to Columbia University.

FRANCIS SOGI

Francis Sogi (pictured with his wife Sarah) is a first generation Japanese-American born in Hawaii. He entered the University of Hawaii shortly before World War II broke out: while his ROTC unit was pulled into active service, he was almost deported from Hawaii before he volunteered to stay in the Army. He was in Army Intelligence for the duration of the war, and then completed his business degree at Hawaii and a law degree at Fordham.

Sogi is a “lifetime partner” in the law firm of Kelley Drye & Warren, which seems to practically mean that he retired from the firm on good terms (he’s no longer listed in active practice there). Most of his career was in New York, but he qualified as a junkaiin and still holds that status today. He maintains an office in Kioicho, Tokyo, which has the somewhat awkward name of “Sogi Foreign-Qualified Attorney Law Office” (蘇木外国弁護士資格者法律事務所). He’s a very charitable fellow, a big figure in the Japanese-American community and a major benefactor of the University of Hawaii.

RICHARD RABINOWITZ

Richard Rabinowitz is currently a part-time advisor to Tozai Sogo Law Offices, a smallish firm in Kioicho that handles international litigation and commercial work.

He studied Japanese during World War II, went to Yale Law School after the war, was admitted in Japan in 1953 and co-founded the law firm of Anderson, Mori & Rabinowitz. Although Anderson Mori was initially run by Americans (Mori was a Japanese-American), all three name partners left by the end of the decade and the firm was taken over by Japanese lawyers. Following its merger with Tomotsune & Kimura it became Anderson Mori & Tomotsune, and is now one of the largest law firms in Japan, with offices on top of the Izumi Garden Tower in Tokyo. (It’s also known as one of the least hospitable work environments for foreign lawyers in Tokyo: the “NOVA” of law firms, if you will.)

After departing from Anderson Mori, Rabinowitz obtained a Ph.D. from Harvard, in the course of which he wrote the first comprehensive English article on the Japanese bar. He was later admitted to the bar in South Korea (although I have no clue how), and taught for several semesters at Harvard and Yale.

REINHARD EINSEL

Reinhard Einsel is an intellectual property specialist at Kawamitsu & Einsel, a firm in Okinawa.

He was admitted to practice law in Okinawa in 1965, when the islands were still occupied by the US, and was grandfathered in as a Japanese junkaiin when Okinawa was returned to Japan in 1972. (There are only eleven other practicing lawyers who joined the Japanese bar as a result of the Okinawa handover, and all of them are Japanese.) So Einsel has the advantage of being slightly younger than his counterparts on the mainland, and will probably be the last of the junkaiin because of the unique way he came into the system.