Statelessness Working Paper Series No. 2017/5 there is no statutory regulation regarding surrogacy in Japan, people are free to avail the services of an overseas surrogate, and do so without realizing the potential consequences this may have for their child. To avoid abstraction, the case of baby Manji is instructive to better understand how cross-border surrogacy places children at risk of statelessness in Japan. In 2008, Manji was born in India through gestational surrogacy to Japanese parents that had divorced prior to her birth.19 The father was genetically related to Manji but because the couple had used a third-party donated ovum the intended mother was not.20 The father wanted to raise Manji despite having divorced the intended mother one month prior to the birth, but when returning to Japan the Japanese embassy refused to issue a Japanese passport to Manji and sought to use the surrogate’s nationality to determine that of Manji’s. However, neither the intended mother, the anonymous ovum donor, nor the surrogate had parental rights, and because India only issues passports to those with Indian parents, Manji was also ineligible for Indian nationality.21 Approximately two months after Manji’s birth a Japanese humanitarian visa was issued allowing her to enter Japan whereupon the Japanese government had promised to grant her nationality once the father’s paternity had been formally established.22 However, it remains unclear whether this child was ever granted Japanese nationality.23 To clarify, Japanese nationality is premised on the principle of jus sanguinis (right of blood),24 and parentage as recorded in the Koseki (Family Registration) is the principle basis upon which Japanese nationality is transmitted.25 Japanese jurisprudence has established that gestation is the basis for maternity26 whereas the Civil Code holds that a presumption founded on marriage serves as the basis for paternity.27 Because Japan recognized the Indian surrogate as Manji’s mother, and because Manji’s father was not the surrogate’s husband such that no presumption founded on marriage would hold, both the maternal and paternal transmission of nationality were foreclosed, leaving Manji with an uncertain legal status in her intended home country of Japan. Although this is only one example, as of 2011 it was documented that more than 100 Japanese couples had pursued surrogacy overseas, many of whom encountered issues with respect to the status of their children.28 Yet, because Japan has no statutory framework regulating cross-border surrogacy, people will continue to avail the services of overseas surrogates and in so doing place their children at risk of statelessness. 4. What can be done? Moving forward, there are at least three approaches Japan can take to remedy these issues. First, Japan could follow the example of several European countries and notify ART clinics abroad to no longer provide services to their nationals.29 However, there is evidence to suggest that nationals of these countries continue to 19 Trisha A. Wolf, ‘Why Japan Should Legalize Surrogacy’ (2014) 23 Pacific Rim Law and Policy Journal 461. Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Nationality Law, art 2(1). 25 As stated by the Ministry of Justice, the koseki is ‘an authentic record of a person’s kinship ties from birth until death which establishes a person as a Japanese national and is the sole system for authenticating Japanese nationality.’ Ministry of Justice, ‘Koseki’ <http://www.moj.go.jp/MINJI/koseki.html> accessed 5 December 2017. 26 Supreme Court, 27 April 1962, Minshū 16, 1247; Supreme Court, 23 March 2007, Minshū 61, 619. 27 Civil Code, ch 3, s 1, art 772 (1). 28 Melissa Ahlefeldt, ‘Less than Family: Surrogate Birth and Legal Parent-Child Relationships in Japan’ (2011) 32 Zeitschrift Für Japanisches Recht 65; 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. 29 Tina Lin, ‘Born Lost: Stateless Children in International Surrogacy Arrangments’ (2013) 21 Cardozo Journal of International and Comparative Law 545; Usha Rengachary Smerdon, ‘Birth Registration and Citizenship Rights of Surrogate Babies Born in India’ (2012) 20 Contemporary South Asia 341. 20 7