This is a blog is related to my academic work in the International Academic Forum on SOGIESC Law but meant to serve anyone who wants to contribute to improve the protection of human rights worldwide. It is intended to keep interested readers informed about legal developments relating to sexual orientation, gender expression and identity and sex characteristics (SOGIESC). Hopefully, it will make it easier to find correct legal information about the developments in all regions of the world and, in particular, with regard to international law.
Tokyo High Court ruling upholds same-sex marriage ban
The Tokyo High Court on Friday issued the final pending appellate decision in Japan’s nationwide same-sex marriage litigation, holding that the country’s statutory framework limiting marriage to opposite-sex couples does not violate the Constitution of Japan. The court dismissed the plaintiff’s claims of breach of constitutional guarantees to equality and individual dignity. It rejected their request for damages on the basis that no constitutional injury had been established.
The ruling stands in contrast to earlier high court judgments issued between 2021 and 2024. Courts in Sapporo, Nagoya, Osaka, Fukuoka, and in an earlier Tokyo appeal found aspects of the current marriage framework unconstitutional. Several of those courts held that Article 14(1) of the Constitution prohibits discrimination based on sexual orientation and justified their decisions by Article 24’s requirement for marriage and family law to be based on “individual dignity” and the “essential equality of the sexes.” The latest decision, by contrast, concluded that the legislature retains broad discretion to define marriage, with Presiding Judge Yumi Toa affirming that provisions governing same-sex marriage ought to be thoroughly deliberated in the legislature.
The court also rejected the argument that denying same-sex couples access to marriage infringes Article 14’s equality guarantee, holding that distinctions grounded in the current civil code definition do not amount to unconstitutional discrimination.
Many municipalities and prefectures across Japan offer recognition through partnership certificates for same-sex couples. However, these frameworks do not provide the full legal rights associated with marriage, such as automatic parental recognition, inheritance, and spousal tax treatment.
The decision creates a direct conflict among courts, leaving Japan without a uniform interpretation of constitutional protections relating to marriage. Lawyers for LGBT & Allies Network (LLAN), which has previously translated major marriage-equality rulings, noted the significance of the divergence between this outcome and the 2024 Tokyo High Court judgment that held the ban unconstitutional.
The issue is now expected to proceed to the Supreme Court of Japan, a unified ruling would determine whether the Constitution permits or requires marriage equality and could clarify the relationship between Articles 14 and 24 in the context of contemporary family structures.
Japan high court declares denial of same-sex marriage unconstitutional
Japan’s Nagoya High Court ruled on Friday that the country’s lack of legal recognition for same-sex marriage is unconstitutional. This ruling marks the fourth consecutive high court decision to declare the current government policy unconstitutional following similar verdicts in Tokyo, Fukuoka, and Sapporo.
The appellants argued that the current provisions of Japan’s Civil Code and Family Registration Act, which do not recognize same-sex marriage, violate Article 14, Paragraph 1, and Article 24, Paragraph 2 of the Japanese Constitution. The appellants also sought damages of 1 million yen in accordance with Article 1, Paragraph 1 of the State Redress Act, as they were unable to marry due to the government’s failure to take necessary legislative action.
In its ruling in favor of the appellants, the court stated that same-sex relationships have existed naturally even before legal marriage, and that the societal acknowledgment of such personal relationships as legitimate is a vital legal interest tied to personal dignity, extending beyond specific legal frameworks for marriage and family.
Additionally, the court held that same-sex couples face disadvantages in various aspects of social life that cannot be resolved through civil partnership systems. These include housing-related disadvantages, such as restrictions on renting properties; financial institutions refusing to recognize same-sex partners as family members for mortgage applications; and disadvantages in accessing products and services designed for family relationships. However, the court said that although the relevant provisions are unconstitutional, the government’s failure to make legislative changes is not illegal under the State Redress Act.
This large-scale class action lawsuit, dubbed “Freedom of Marriage for All,” involves more than 30 plaintiffs and around 80 lawyers, with six lawsuits filed in five courts nationwide. This is the first class action lawsuit for same-sex marriage, as Japan remains the only Group of Seven (G7) country that has yet to legalize same-sex marriage, despite persistent lobbying from the LGBT community and its supporters.
“Italy Criminalises Surrogacy from Abroad, a Blow to Gay and Infertile Couples.” This was the headline on the New York Times website following the approval of a law in Italy criminalising reproductive tourism. Giorgia Meloni had already introduced the bill, Act no. 824, in the last Parliament, and the current right-wing majority has now passed it. The news has gone around the world. Let us try to understand why.
Surrogacy and its regulation
Gestation for others, commonly known as “surrogacy”, is a method of assisted reproduction in which a woman carries a pregnancy on behalf of others, who then become the parents of the child. The ovum from which the child is conceived comes from a donor or from the intended mother, ensuring that the pregnant woman has no blood ties to the unborn child. The male gametes can be those of the future father (or of one of the future fathers in the case of same-sex couples), or of a donor. For a so-called “altruistic surrogacy”, the pregnant woman receives no payment (except for her expenses). “Commercial surrogacy”, on the other hand, involves payment to the woman who carries the pregnancy. In some countries, both European and non-European, surrogacy is allowed only in the altruistic form (e.g. United Kingdom, Netherlands, Portugal, Canada), in others – the minority – in both altruistic and commercial forms (United States, Greece, Georgia, Ukraine).
In Italy, however, surrogacy has been a criminal offence since 2004. Law no. 40/2004 art. 12, para. 6 punishes with imprisonment from three months to two years or a fine from 600,000 to 1 million euros “anyone who, in any form, carries out, organises or advertises the commercialisation of gametes or embryos or surrogacy”.
The reform
Crucially, the new Italian law does not create a new offence, nor does it increase the penalties. Instead, it extends the law’s reach by allowing prosecution of Italian citizens engaging in surrogacy abroad. Previously, prosecution of such conduct abroad was only possible at the request of the Italian Minister of Justice, as per art. 9 of the Italian Criminal Code. Moreover, even in the absence of an expressed legislative provision, Italian law required, according to some courts and scholars, “double incrimination” for ordinary offences committed abroad, meaning that the act had to be considered a criminal offence both in Italy and in the foreign State where it was committed.
The application of double incrimination has rarely been addressed by Italian courts, and the few decisions on this topic send mixed messages. However, one significant decision of the Corte di Cassazione (the highest Italian civil and criminal court) took a stance on this issue in the context of surrogacy. In 2016, the Court heard the case of an Italian heterosexual couple who had resorted to this assisted procreation technique in Ukraine, where such a practice is legal (see Cass. pen., sez. V, 10 marzo 2016, n. 13525). The Court acquitted the two defendants, stating that the aforementioned uncertainty in the interpretation of art. 9 Criminal Code – and thus of the double incrimination requirement – had led to an unavoidable error on the part of the accused: the couple was not in a position to know whether or not the conduct they had committed in Ukraine was punishable under Italian law, and thus acquitted.
The new bill was finally approved by the Senate on 16 October. It remedies this legal uncertainty by inserting the following sentence at the end of paragraph 6 of article 12 of Law no. 40/2004: “If the facts referred to in the preceding sentence, with reference to surrogacy, are committed abroad, the Italian citizen shall be punished according to Italian law.” This way, surrogacy carried out by Italian citizens abroad can now be prosecuted, even without the request of the Minister of Justice and without double incrimination. In the public debate, this innovation has been called a “universal offence”. However, this is a misnomer: The legislation does not make surrogacy a “universal offense” in the true sense, that is a conduct universally criminalized – such as war crimes, torture, or genocide. Instead, it is more accurately a form of extended jurisdiction that Italy claims over Italian citizens who engage in surrogacy abroad, even where it is legally permissible.
Some reflections on state power
The new law provides an opportunity to reflect on the limits of state power in criminalisation, especially in modern liberal democracies. Some argue that the criminalisation of surrogacy abroad is concerning as it reflects “an idea of a State guardian of the morality of its citizens, wherever they go”, which is contrary to “the principles of political liberalism” (see D. Pulitanò, Surrogazione di maternità all’estero. Problemi penalistici, in Cassazione penale, 2017, p. 1372). The reform has broad implications for other legal areas as well, especially international judicial cooperation and private law.
A particularly pressing issue arises with the legal status of children born through surrogacy abroad. In civil cases, the Court of Cassation has constantly held (lately with the confirmation by the Sezioni Unite, the Court of Cassation sitting in full court) that Italy does not automatically recognize foreign court orders, and consequently also related original birth certificates, designating intended parents as legal parents, even if one is the biological parent. This reflects a negative view of surrogacy in Italian civil jurisprudence, which, according to the Cassazione, “regardless of the manner in which it is practiced and the aims it pursues, is intolerably offensive to the dignity of women and deeply undermines human relationships.”
What remains to be done
Subsequently, the Constitutional Court in 2021 (Decision No. 33/2021) examined whether the view expressed in the civil decisions of the Cassation was compatible with the rights of the child enshrined in constitutional and supranational law. While recognizing a child’s right to legal acknowledgment of their parental relationships, the Court also affirmed the state’s interest in discouraging surrogacy which can be weighed against the right of the child, within the limits of proportionality. Referring to European Court of Human Rights case law, particularly C. v. France and E. v. France, the Court noted that while states may choose not to register foreign documents acknowledging intended parenthood, they must ensure alternative means for recognizing the child-parent relationship if it has effectively materialized. It is then left to the discretion of each State to choose such measures. Those measures may include adoption of the child, provided that a genuine ‘filiation’ bond between the adopter and the adoptee can be established, and “provided that the detailed rules laid down by domestic law ensure the effectiveness and rapidity of its implementation, in accordance with the best interests of the child.” However, Italy’s current provisions under Law No. 184/1983, which allow for “adoption in special cases”, have been deemed insufficient by the Constitutional Court to fully protect children’s rights. The Constitutional Court had no choice but to call upon the legislator, but the recent Act no. 824 only extends criminal penalties, failing to address the issues related to the civil status of the child born through surrogacy, as pointed out by the Constitutional Court, and which have become widespread in practice.
This gap leaves many families in a precarious situation upon returning to Italy, risking self-incrimination by seeking legal recognition for the child’s status – a problem that engages the principle nemo tenetur se detegere (the right against self-incrimination), whose constitutional relevance was reaffirmed by the Constitutional Court in Decision No. 111 of 2023.
There are many more complexities to the regulation of surrogacy that other critical elements in this matter which, leaving aside the various ethical opinions on surrogacy, call for a deeper reflection on the path that the Italian Parliament is following – or intentionally not following – in such a delicate area. But the law demands that any regulation protects the fundamental rights of the person, in particular those of the children.
Japan court reaffirms same-sex marriage ban is unconstitutional
The Tokyo High Court declared Japan’s current policy against same-sex marriage as discriminatory and unconstitutional in a ruling on Wednesday.
The case involved a couple in Tokyo registered as same-sex partners who sought compensation from the government, arguing that laws failing to recognize same-sex marriage violated the Japanese constitution.
Presiding Judge Taniguchi Sonoe emphasized that establishing a legal relationship as spouses for same-sex individuals is fundamental for a fulfilling social life and deserving of equal respect as heterosexual unions. The court delved into the interpretation of “freedom of marriage” under Article 24 of the constitution, addressing the language referencing “both sexes” and “husband and wife.”
The court clarified that these terms do not exclude legal protection for same-sex couples, highlighting the importance of legal recognition for all individuals. By examining provisions in the Civil Code and related laws, the court concluded that denying same-sex marriage rights breached constitutional principles of equality under the law and essential gender equality.
This ruling aligns with a prior landmark decision in 2021, which deemed the government’s stance on same-sex marriage unconstitutional. The Sapporo High Court in March 2024 affirmed the district court decision, being the first High Court in the country to declare the ban explicitly unconstitutional.
Advocacy groups in Japan like the “Freedom of Marriage for All” are now calling on the National Diet, the Japanese parliament, to enact legislation ensuring same-sex marriage rights without delay.
Amnesty International’s East Asia Researcher, Boram Jang, praised the Tokyo High Court’s decision, emphasizing the significance of this step towards marriage equality and the need for comprehensive national legislation to uphold equal rights for all couples in Japan.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 