Japan and Spousal Consent: The Tip of the Iceberg

Abortion is a volatile topic at the best of times but over the past couple of years, a massive wave of both reform and pushback to abortion laws has been felt worldwide. Thanks to a global pandemic in particular, a new shift in healthcare systems is forcing us to evaluate gaps in policies that we’ve been blind to over the years, ones that no longer serve a place in today’s context. Abortion reform has exposed archaic, patriarchal, and rights-defying clauses that, quite frankly, have no place in the legislative – or physical – world anymore.

One of these clauses is spousal consent, wherein those wanting abortion services have to obtain the consent of their partner in order to receive treatment. In many cases, what spousal consent entails is a bit murky, as conservative beliefs and cultural stigma inform the language as to who is considered a spouse and whether pre-marital sexual intercourse can be publicly acknowledged as something that even happens. A spousal consent clause exists in at least 11 countries around the world, including Japan, Indonesia, Turkey, Taiwan, Kuwait, Syria, United Arab Emirates, Morocco, Republic of Equatorial Guinea, Saudi Arabia, and Yemen. South Korea also required spousal consent until just recently, when its abortion laws were deemed unconstitutional, and abortion was legalized this past December.

Spousal consent has recently become a topic of debate as an outcry in Japan has pushed hospitals still requiring a spouse to sign off on abortion requests, even in cases of rape and domestic assault, to abolish the clause. In March, the Japan Medical Association (JMA) and the Japan Association of Obstetricians and Gynecologists (JAOG) conferred with the Ministry of Health, Labour, and Welfare over the issues with the clause and the Ministry has since issued the  new guidelines that those seeking abortion care did not require their spouse’s consent if they could prove domestic assault. Japan does not allow women abortion on demand and requests can only be made with a registered doctor, with the country’s Penal Code still outlining up to a year imprisonment for those who attempt one themselves.

While Japan’s push for a revision of these clauses is making headway, as medical facilities are being petitioned to make policy changes (petition provided in link above), many other countries still place consent burdens on those looking to terminate a pregnancy. In Indonesia for example, abortion is allowed in two circumstances, according to the Law on Health: in cases of rape or early indications of medical conditions that threaten the life of the mother and/or the fetus. In both cases, the abortion has to be performed before 6 weeks, a deadline by which many won’t even know they’re pregnant. In cases of fetal indications, the law also states the consent of the recipient’s husband is required; “husband” in the eyes of the law, meaning a cis, hetero-normative and registered marriage. An additional barrier was added to this in 2015 when the Government Regulation of Reproductive Health required the consent of the family if a spouse’s consent couldn’t be obtained. To add insult to injury, the whole situation needs to be verified by a health professional, specifically an OB-Gyn. For instances of rape, spousal consent is not required but the incident still needs to be verified by a medical team, police officer, and a counsellor, worsening an already traumatic experience. Similarly, Turkey - which implemented elected abortion until 10 weeks in 1983 – requires women to both notify their doctor if they wish to request an abortion and, if they’re married, the consent of their spouse. Recent research has indicated this has been particularly difficult for those trying to get a divorce, who frequently face coercion and, in some cases, violence.

Countries that impose spousal consent as a necessary clause of abortion care are arguably in violation of several international human rights codes and they go against the WHO’s own guidance to safe abortion: “Third-party authorization should not be required for women to obtain abortion services. The requirement for authorization by a spouse may violate the right to privacy and women’s access to health care on the basis of equality of men and women. Safe Abortion Guidelines, § 4.2.2.2.”

The recent shift in Japan illuminates some of the more complicated nuances of abortion laws and ultimately reinforces why abortion without restriction is so necessary. As such is at the heart of what’s happening in Japan, many of the countries with spousal consent clauses only allow abortion is cases of rape. This not only poses a giant contradiction and a huge human rights violation, but it clearly intersects abortion with the still very common yet grossly under-reported element of domestic and gender-based violence. By forcing women and pregnant people to be at the behest of their partners – and worse, potentially their violators – States are purposefully positioning women as property.

In the case of Japan, though the pre-existing Maternal Health Law – first enacted as the Eugenic Protection Law in 1948 before being revised to the current law in 1996 – doesn’t technically require women to get the consent of their perpetrator in the case of rape, it’s still a common occurrence and clearly presupposes the age-old myth that rape doesn’t happen within a marriage; otherwise, this clause should already exist. In a recent incident, a woman was raped by a neighbour and was thus asked to acquire consent given the fact that she knew her assailant when she asked to get abortion care. The Law states that doctors must obtain the consent of the partner responsible for the pregnancy and due to fear of legal repercussions, this often means regardless of the circumstance. Women have been denied abortion care by multiple facilities and forced to give birth even when citing sexual assault and being unable to provide a spouse’s consent. Oftentimes, women will not report their rape and if they do, chances are high it’s the result of intimate partner violence (IPV) as approximately 1 in 3 women have experienced IPV and according to the World Health Organization (WHO), 38% of all global murders of women are committed by intimate partners. According to research, about 1 in 13 women in Japan over the age of 18 have experienced rape. Certainly, the laws surrounding abortion – as they are in several restricted areas – are malleable if one can afford to pay enough.

With this new amendment to ministry guidelines, women are exempt of the spousal consent clause conditionally, if they are victims of domestic assault; if. Meaning, victims are potentially responsible for proving, corroborating, and/or verifying their assault to a third party, bringing to light another facet of abuse, which is to say that merely a woman’s word is rarely passable: What if a situation arises without obvious signs of struggle or violence? What if the request for an abortion happens multiple times from the same woman or person, with multiple reports of abuse? What will be the intervention? What will this mean for the survivor(s)? What support will they receive? And finally, what will be the repercussions for someone reporting their spouse as an abuser? These situations are not cut and dry and potentially put women at a greater risk.

Allowing for the exemption of spousal consent in cases of abuse, while certainly a step in the right direction, also robs a woman of privacy, potentially forcing her into whole new worlds of scrutiny and decisions she may still not get to make for herself. As a resource for many Japanese women, international telemedicine abortion service, Women on Web, will often receive details on the various circumstances for which women are reaching out to them. Between 2013 and 2020, Women on Web consulted 4159 abortion care seekers. One recent Japanese service user was both financially and sexually controlled by her husband. With abortions exceeding the equivalent of $1000-2000 depending on the term, will requests for circumstances such as this one be subsidized? Slowly the tangled intersectional root structure of abuse reveals how far it reaches, and all of this is unearthed just by stripping a single layer off the surface of abortion clauses…

Spousal and familial consent for abortion erases the myriad ways people get pregnant and inadvertently absolves domestic abusers of their crimes. Spousal consent does not lend decision equity to the person impregnating; it robs a pregnant person of their autonomy. It places the fragile power of patriarchy at the forefront of the abortion debate and women’s bodies under ownership. As with many abortion clauses, the main accomplishment of spousal consent is erasure - erasure of experience and erasure of body autonomy – and only easing it conditionally, merely serves to expose that erasure. Once again, Japan’s concession to diminish spousal consent and acknowledge the harm it causes is a step in the right direction. But that direction can only end in abortion without restriction if it seeks to truly address the complexities faced by those wanting to terminate a pregnancy.    

 

Published: 28 July 2021

Written by: Erin Hassard