Adoption in Japan: Understanding the Differences Between Ordinary and Special Adoption

Adoption, as a legal mechanism for creating parent-child relationships where none biologically exist, serves diverse societal and individual needs. In Japan, the legal landscape of adoption is characterized by two distinct systems: "Ordinary Adoption" (Futsū Yōshi - 普通養子) and "Special Adoption" (Tokubetsu Yōshi - 特別養子). While both aim to establish a legal parent-child bond, they differ significantly in their purposes, requirements, effects, and the degree to which they sever ties with the biological family. This article explores these two forms of adoption in Japan, providing an understanding of their unique features and legal implications.

I. Ordinary Adoption (普通養子 - Futsū Yōshi): A Flexible System with Diverse Aims

Ordinary adoption is the traditional and more versatile form of adoption in Japan, historically utilized for a wide array of purposes beyond solely child welfare.

A. Historical Context and Purposes

Unlike the evolution in many Western countries where adoption shifted primarily towards a child welfare focus, ordinary adoption in Japan has long served multiple functions. Historically, and even under the Meiji Civil Code, adoptions were common for:

• Family Succession: Ensuring the continuation of the family line (ie) and name, particularly if there were no biological male heirs.
• Strengthening Family Alliances or Improving Social Standing: For example, adopting a son-in-law to carry on the family business or adopting a daughter into a family of higher status to improve her marriage prospects.
• Securing Labor or Care: Adopting individuals to contribute to family enterprises or to provide care for elderly family members.
• Various Other Motives: Including, in some instances, adoptions related to artistic apprenticeships (like for geisha) or even for tax planning purposes ("tax-saving adoptions" - setsuzei yōshi), though the latter has been curtailed by tax law reforms.

While post-WWII reforms introduced Family Court permission for the adoption of minors, aiming to inject a child welfare perspective, the ordinary adoption system retains its flexible nature, allowing for adult adoptions and adoptions for reasons not strictly centered on the care of a dependent child.

B. Formation of Ordinary Adoption

The creation of an ordinary adoptive relationship involves meeting certain substantive and formal requirements:

1. Intent to Adopt (Engumi Ishi - 縁組意思):
   The fundamental requirement is a genuine mutual intent between the adopter(s) and the adoptee (or their legal representative if the adoptee is young) to create a real parent-child relationship.
   • Validity of Intent: Courts scrutinize this intent. Adoptions made for purely collateral motives without the intent to establish a genuine familial bond may be deemed void. For example, an adoption solely to enable a student to enroll in a specific school district (越境入学養子 - ekkyō nyūgaku yōshi) has been invalidated. However, if a genuine familial intent coexists with other motives, such as ensuring inheritance or expressing gratitude for past care (especially in adult adoptions), the adoption may be upheld. The Supreme Court decision of October 22, 1971 (最判昭和46年10月22日民集25巻7号985頁) upheld an adoption between adults where the primary motivations were gratitude and ensuring post-mortem ancestral rites, alongside creating an inheritance path, as a genuine parent-child-like bond was also found. For minor adoptees, the intent must genuinely encompass their care and upbringing.
2. Key Substantive Requirements (Articles 792-798, Civil Code):
   • Adopter's Age: The adopter must be an adult (Article 792). There is no upper age limit for the adopter in ordinary adoption.
   • Prohibited Adoptees: One cannot adopt a lineal ascendant (e.g., parent, grandparent) or someone older than oneself (Article 793).
   • Guardian Adopting Ward: A guardian wishing to adopt their ward generally requires the permission of the Family Court (Article 794), to prevent potential conflicts of interest.
   • Adoption by Married Persons:
     • Adopting a Minor: If a married person adopts a minor, they must do so jointly with their spouse (夫婦共同縁組 - fūfu kyōdō engumi) (Article 795). Exceptions include adopting one's own stepchild or if the other spouse is unable to express their intent.
     • Adopting an Adult or Stepchild: If a married person adopts an adult, or adopts their spouse's child (stepchild adoption), they can do so individually, but the consent of their spouse is required (Article 796).
   • Adoption of a Minor: Family Court Permission (Article 798): As a general rule, adopting a minor requires the permission of the Family Court. This is a key child protection measure. However, permission is not required if one is adopting their own lineal descendant (e.g., a grandchild) or the lineal descendant of their spouse. This exception covers many stepchild adoptions, which constitute a significant portion of minor adoptions in Japan.
3. Formal Requirement: Notification (Todokede)
   An ordinary adoption becomes legally effective upon the filing and acceptance of an adoption notification with the municipal office for recording in the family register (koseki) (Article 799, applying Article 739 by analogy). This notification must be signed by the parties and two adult witnesses.

C. Legal Effects of Ordinary Adoption

• Status of Legitimate Child: From the day the adoption becomes effective, the adopted child acquires the legal status of a legitimate child (chakushutsushi) of the adoptive parent(s) (Article 809).
• Creation of Legal Kinship: A legal blood relationship is established between the adoptee and the adoptive parent(s) and their blood relatives (e.g., the adopter's parents become the adoptee's legal grandparents) (Article 727).
• Continuation of Ties with Biological Family: Crucially, in ordinary adoption, the legal relationship between the adopted child and their biological parents and other biological relatives continues to exist. This results in a "dual kinship" status. Consequently, the child typically has rights to inherit from both their adoptive parents and their biological parents, and mutual duties of support can exist with both families.
• Parental Authority: If the adoptee is a minor, the adoptive parent(s) acquire parental authority (shinken) over them (Article 818, Paragraph 2).

D. Dissolution of Ordinary Adoption (Rien - 離縁)

The legal ties created by an ordinary adoption can be severed through a process called rien, which is analogous to divorce.

• Methods: Rien can be effected by mutual agreement of the parties (協議離縁 - kyōgi rien), which requires notification to the family register. If agreement is not possible, it can be sought through a judicial decision by the Family Court (裁判離縁 - saiban rien).
• Grounds for Judicial Rien (Article 814): The statutory grounds for judicial dissolution are similar to those for divorce: (1) malicious desertion by the other party, (2) if the other party's whereabouts have been unknown for three years or more, or (3) if there is any other grave reason making it difficult to continue the adoptive relationship.
• Specific Rules:
  • Adoptee Under 15: If the adoptee is under 15, dissolution by agreement is made between the adoptive parent(s) and the person(s) who will become the child's legal representative after the dissolution (typically the biological parents, whose parental authority is often restored) (Article 811, Paragraph 2).
  • Joint Adopters: If a married couple jointly adopted a minor, they must generally act jointly to dissolve the adoption (Article 811-2).
  • Post-Mortem Rien (死後離縁 - Shigo Rien): If one party to the adoption (either adopter or adoptee) has died, the surviving party can, with the permission of the Family Court, effect a dissolution to sever the legal ties with the deceased party's relatives (Article 811, Paragraph 6).
• Effects of Rien: The legal parent-child relationship with the adoptive parent(s) and their relatives terminates. The child generally reverts to their pre-adoption surname, though there are provisions for continuing to use the adoptive surname under certain conditions (enshi zokushō - 縁氏続称) if the adoption lasted for seven years or more (Article 816, Paragraph 2).

II. Special Adoption (特別養子 - Tokubetsu Yōshi): Prioritizing Child Welfare in a Permanent Setting

Introduced into the Civil Code in 1987 (effective 1988), the special adoption system was created to provide a more permanent and stable family environment for children, primarily those who cannot be raised by their biological parents. It aims to create a legal and social reality as close as possible to that of a biological parent-child relationship.

A. Rationale and Purpose

The impetus for special adoption came from several sources:

• Child Welfare: A primary goal is to protect the welfare of children in need of a permanent family, such as those abandoned, abused, or whose parents are unable or unwilling to provide adequate care.
• Desire for "True Child" Relationship: It addresses the strong desire of many adoptive parents to raise a child as their "own" in every legal and social sense, without the continuing legal ties to the biological family that characterize ordinary adoption. This was highlighted by cases like the "Kikuta Doctor Incident" (菊田医師事件 - Kikuta Ishi Jiken), where a doctor facilitated false birth registrations for children placed with adoptive families, underscoring the societal demand for a more complete adoptive bond.
• Stability and Permanence: Special adoption is designed to be a more secure and less easily dissolvable relationship than ordinary adoption.

B. Establishment by Family Court Adjudication (Not by Agreement)

Unlike ordinary adoption, which can be formed by agreement and notification (with court permission for minors), a special adoption is established solely by a constitutive judgment of the Family Court (Article 817-2). This underscores the state's role in ensuring the adoption is in the child's best interests.

C. Stringent Requirements for Special Adoption (Articles 817-3 to 817-8)

The requirements for special adoption are considerably stricter than for ordinary adoption:

1. Adoptive Parents (Yōshin): Must be a legally married couple adopting jointly (Article 817-3). Both spouses must generally be 25 years of age or older, though one may be 20 or older if the other spouse is 25 or older (Article 817-4). Single-parent special adoption is not permitted.
2. Adopted Child (Yōshi): The child must generally be under the age of 6 at the time the petition for adoption is filed with the Family Court (Article 817-5). This age limit can be extended to under 8 if the child has been continuously under the care of the prospective adoptive parents since before the age of 6 (e.g., in a foster care arrangement leading to adoption).
3. Consent of Biological Parents (Fubo no Dōi) (Article 817-6): The consent of the child's biological parents is generally required. However, consent may be dispensed with by the court if the parents are unable to express their intent (e.g., due to death or unknown whereabouts) or if their consent cannot be obtained due to circumstances gravely detrimental to the child's interests, such as abuse, malicious desertion, or other severe parental unfitness.
4. "Particular Necessity for the Child's Welfare" (Article 817-7): The court must find that care by the biological parents is extremely difficult or inappropriate for other reasons, and that the special adoption is "particularly necessary for the interests of the child." This is a key discretionary determination by the court, focusing on the child's need for a permanent, stable, and nurturing family environment.
5. Trial Period (Shiken Yōiku Kikan) (Article 817-8): Before making a final decision, the Family Court generally requires a trial period of at least six months during which the prospective adoptive parents care for the child. This allows the court to assess the suitability of the placement and the development of the parent-child bond.

D. Profound Legal Effects of Special Adoption

The legal effects of special adoption are designed to create a relationship that mirrors a biological one as closely as possible:

1. Complete Severance of Legal Ties with Biological Family (Article 817-9): This is the most defining characteristic and the primary legal difference from ordinary adoption. Upon the finalization of a special adoption, the legal relationship between the adopted child and their biological parents and all their biological blood relatives is completely terminated. Exceptions are made for prohibitions on marriage with close biological relatives.
2. Full Legal Status as Child of Adopters: The child becomes, for all legal purposes, the child of the adoptive parents, as if born to them. This includes full inheritance rights from the adoptive parents and their relatives, and the adoptive parents have full parental authority.
3. Family Register (Koseki) Entries: The koseki entries for a specially adopted child are made to reflect them as the biological child of the adoptive parents. For instance, they will be recorded as "first son" or "first daughter." There is no direct mention of the adoption or the biological parents on the standard extract of the adoptive family's koseki that is typically used for official purposes. The original birth registration and adoption records are sealed and kept separately, with access highly restricted, primarily to protect the child's privacy and the integrity of the new family unit, though the adopted person themselves may later seek access.

E. Dissolution of Special Adoption: Extremely Restricted (Article 817-10)

Reflecting its purpose of providing permanence, the dissolution of a special adoption is exceptionally difficult and strictly limited:

• Cannot be Initiated by Adopters: The adoptive parents cannot initiate dissolution proceedings.
• Grounds for Child, Biological Parents, or Prosecutor: Dissolution can only be sought by the adopted child, their biological parents, or a public prosecutor. It is granted only if:
  • There has been severe abuse, malicious desertion by the adoptive parents, or other circumstances gravely detrimental to the child's interests attributable to the adopters, AND
  • The biological parents are capable of providing adequate care for the child, AND
  • Dissolution is found to be particularly necessary for the child's benefit.
• Effect of Dissolution (Article 817-11): If a special adoption is dissolved, the legal relationship with the biological parents and their relatives is restored from the date of dissolution.

III. Comparing Ordinary and Special Adoption: Key Differences

The following table summarizes the main distinctions:

IV. Current Trends and Considerations

While special adoption was introduced with high hopes for child welfare, statistics show that its uptake has been relatively modest compared to ordinary adoptions, even those ordinary adoptions of minors requiring court permission. In 2000, for example, there were 746 special adoptions finalized, compared to a larger number of ordinary adoptions involving minors. Stepchild adoptions, which often proceed as ordinary adoptions without court permission (if adopting one's spouse's lineal descendant), remain a common form of adoption in Japan.

Challenges in the special adoption system can include the difficulty of obtaining informed consent from biological parents (especially if they are hard to locate or resistant), the rigorous judicial scrutiny of the "particular necessity" for the child's welfare, and perhaps a general lack of public awareness or resources to support potential special adoptive families.

The interaction of these domestic adoption systems with intercountry adoption is another complex area. Japan has ratified the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which aims to establish safeguards for such adoptions.

V. Conclusion

Japan's dual adoption system offers distinct pathways for creating legal parent-child relationships. Ordinary adoption provides a flexible framework suitable for a variety of social purposes, notably allowing for the continuation of ties with the biological family. In contrast, special adoption offers a more definitive and permanent solution, specifically designed for the welfare of younger children in need of a new family by legally and socially integrating them into the adoptive family as if born into it, severing ties with their biological origins. The Family Court plays a critical supervisory role in all adoptions involving minors and exclusively controls the formation of special adoptions, underscoring the state's commitment to protecting the best interests of the child in these life-altering legal processes.