Japan to Offer Redress for Forced Sterilization Victims
A working group from the Japanese ruling coalition on the issue of redressing wrongs committed by the Japanese government under the now-defunct Eugenic Protection Law has proposed that the Japanese government would apologize for and compensate victims of forced sterilization carried out over the five decades when the law was in force. However, the Japanese government would not be asked to comment on the constitutionality of forced sterilization operations under the proposed plan for redress as announced on Nov. 1, 2018.
These policy proposals will be incorporated into a compensation bill that the ruling coalition aims to pass during the ordinary session of the Diet in 2019. However, to many victims, their families and lawyers, and other support groups, the proposal remains deeply unsatisfactory owing to the narrow definition of human rights violations proposed; the potential conflict of interest with the very agency that carried out sterilizations to be empowered to certify victims of its prior policies; the lack of a definitive constitutional ruling on the matter; and limitations on who can apply for and receive compensation.
In the wake of the Second World War, the National Diet embarked on a series of efforts — mirroring the legislation of prewar Imperial Japan — to remove “malignant genetic elements” from the rapidly booming Japanese population. The culmination of these efforts was the Eugenic Protection Law, which was passed unanimously in both chambers of the Diet in 1948. An aggressive pursuit of execution of the law followed in the years after, with expansions of the category of people liable for sterilization occuring in 1952 (for those with non-hereditary disabilities) and 1957 (for criminals) alongside expanded budgets for the government’s forced sterilization efforts.
The central objective of the law, as established in its Article 1, was “to prevent the increase of inferior descendants from the eugenic point of view and to protect life and health of the mother as well.” While Article 3 noted that individuals had to give consent for sterilization in cases where individuals or their partner had “hereditary psychopathy, hereditary bodily disease or hereditary malformation” or suffered from leprosy or mental retardation, Articles 4 and 12 laid out provisions for involuntary sterilization, with physicians required to apply to the local “Eugenic Protection Commission” to receive permission to sterilize a patient suffering from a disease listed in the law “for the public interests in order to prevent hereditary transmission of the disease.”
While additional provisions of the law laid out the procedure for appealing decisions of the Commission permitting sterilization, the reality of practice under the law barred specific classes of patients from accessing the appeals process and granted physicians enormous discretionary power to carry out sterilizations. Furthermore, a 1953 guideline put out by the Ministry of Health and Welfare (MHW) — the very same ministry to be charged with identifying victims of forced sterilization under the Nov. 1, 2018 proposal — stated that "a eugenic operation can be performed against the patient's own will" when the Commission found it necessary. It also permitted physicians “to restrain the patient's body, to administer an anesthetic, or to deceive the patient” to carry out sterilization operations.
The Eugenic Protection Law was ultimately stripped of its content related to eugenics — most notably the removal of the provisions related to forced sterilization — and renamed the Maternal Protection Law in 1996 to continue to permit abortions in Japan. By then, an estimated number of some 25,000 individuals — out of which 16,500 did not consent — had been subject to forced sterilization operations, which gave way to a host of cases brought by victims’ advocacy groups and victims themselves suing the government for redress and compensation.
In 1997, under pressure by 17 groups representing women or the handicapped, the MHW stated that it had no plan to offer apologies or compensation to some 16,000 handicapped women that were forcibly sterilized and no intention to continue investigating the matter on the grounds that the sterilizations were legal at the time of operation. While the Diet debated a proposal to compensate victims In 2004, ultimately no law was passed on the issue. In 2016, the UN Committee on the Elimination of All Forms of Discrimination noted the lack of government initiative to provide redress and urged Japan to provide “all victims of forced sterilization with assistance to access legal remedies” along with “compensation and rehabilitative services.”
In January of this year, the first legal suit against the government on forced sterilization that took place under the Eugenic Protection Law was filed by a woman in Sendai District Court. The woman, who was forcibly sterilized as a teenager, alleged the state “failed to legislate for relief measures despite the serious human rights infringement” and that the 1948 law was unconstitutional on the grounds that it denied human equality and the right to pursue happiness.
By July 2018, six other plaintiffs had filed separate suits in their respective district courts challenging the government on the constitutionality of the sterilizations and seeking compensation while the ruling coalition announced the formation of a task force to consider specific and speedy compensation measures for forced sterilization victims.
Apart from monetary compensation, the plaintiffs and their lawyers are pushing for the Japanese government to provide clarification on the constitutionality of the Eugenic Protection Law; to offer compensation for victims of forced abortion as well, which was carried out alongside forced sterilizations under the law; to create an independent group to identify and certify victims of forced sterilizations carried out by the MHW. Critics of the new redress proposal have also pointed to the fact that while the proposal incorporates “deep regret and apology,” the lack of recognition of the unconstitutionality of the law and the lack of transparency on the government’s end makes it “unclear what exactly the government’s apologizing for.”
The last time Japan hosted the Summer Paralympic Games was in 1964 in Tokyo, when the Eugenic Protection Law was in full force. As Japan prepares to host the 2020 Olympic Games at Tokyo, which will be followed by the 2020 Summer Paralympics, some wonder whether the country has moved on from its history of discrimination. Paralympic athlete Hajimu Ashida offers up questions in this regard: “I wonder whether Japan will truly become as accepting of diversity as we are told. Will [the 2020 Paralympics] just come and go without creating lasting change?”