Statelessness Working Paper Series No. 2017/5 1. Introduction This paper calls attention to an emerging area of research with respect to statelessness in Japan: cross-border gestational surrogacy. To begin, an explanation of gestational surrogacy and a brief overview of the global surrogacy industry is provided. Following from this, the practice of gestational surrogacy in Japan is discussed to explain how Japanese children born through surrogacy are placed at risk of statelessness. Three approaches that Japan could employ in response to this growing area of concern are then explored. This paper argues that the absence of formal regulation of gestational surrogacy in Japan compels those who wish to have children via surrogacy to seek out the services of overseas surrogates, which in turn places the children born through such arrangements at a high risk of statelessness upon arrival in Japan. 2. What is Gestational Surrogacy? Gestational surrogacy is an assisted reproductive technology (ART) whereby an individual or couple, unable to procreate, enter into contract with a woman (the surrogate) to carry to term a baby that has been conceived by having an egg fertilized outside the uterus via in vitro fertilization implanted in the surrogate’s uterus.1 The gametes used in these arrangements may come from the intended parents or anonymous donors, such that five different parties may be involved in the conception and birth of a child.2 Gestational surrogacy was first reported in 1985,3 and with the global expansion of this commercial practice, ART has blossomed into a global industry estimated to generate $6 billion USD annually.4 Until recently, India was recognized as the premiere destination for commercial surrogacy, with more than 3,000 clinics generating an annual collective revenue of $400 million USD.5 However, following exclusionary legislation introduced in 2013, Thailand briefly replaced India as the so-called womb of Asia until all forms of international surrogacy were banned by the military government in July 2015.6 Owing to the barriers encountered in either India or Thailand, countries like Poland, Ukraine, Russia, Georgia, Mexico, Nepal, and Cambodia are now emerging as major commercial surrogacy destinations.7 A key challenge with respect to this ART is identifying the legal parent(s) of a child given that surrogacy may implicate up to five parties, thus complicating the historical view of parentage and child creation as involving only one woman and one man.8 Currently, there is no consensus among states as to how legal parentage in a surrogacy contract is to be identified. For those seeking to evade the scrutiny of a home country that prohibits surrogacy or champions strict familial norms by pursuing surrogacy abroad, the conceived child is 1 Trisha A. Wolf, ‘Why Japan Should Legalize Surrogacy’ (2014) 23 Pacific Rim Law and Policy Journal 461. Ibid. 3 Katherine Voskoboynik, ‘Clipping the Stork’s Wings: Commercial Surrogacy Regulation and its Impact on Fertility Tourism’ (2016) 26 Indiana International Law Review 336. 4 Raywat Deonandan, ‘Recent Trends in Reproductive Tourism and International Surrogacy: Ethical Considerations and Challenges for Policy’ (2015) 8 Risk Management and Healthcare Policy 111. 5 Ibid. 6 Jessica M. Caamano, ‘International, Commercial, Gestational Surrogacy Through the Eyes of Children Born to Surrogates in Thailand: A Cry for Legal Attention’ (2016) 96 Boston University Law Review 571; Katherine Voskoboynik, ‘Clipping the Stork’s Wings: Commercial Surrogacy Regulation and its Impact on Fertility Tourism’ (2016) 26 Indiana International Law Review 336. 7 Raywat Deonandan, ‘Recent Trends in Reproductive Tourism and International Surrogacy: Ethical Considerations and Challenges for Policy’ (2015) 8 Risk Management and Healthcare Policy 111; Yuri Hibino, Gestational Surrogacy in Japan, in: E. Scott Sills, Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues, Cambridge University Press 2016, p. 174-180; Katherine Voskoboynik, ‘Clipping the Stork’s Wings: Commercial Surrogacy Regulation and its Impact on Fertility Tourism’ (2016) 26 Indiana International Law Review 336. 8 Brittany M. Nichol, ‘A Child Without a Country: Dissolving the Statelessness of Children Born Through Surrogacy’ (2016) 2016 Michigan State Law Review 907. 2 5