Why the Eugenic Protection Act, which violated the human rights of persons with disabilities, existed until recently

The common understanding after the war that persons with disabilities were a burden on society and that they would be happier if they were not born

The Eugenic Protection Act, enacted after World War II, was passed unanimously in the Diet. At that time, it was a law whose legitimacy no one questioned. The main reason claimed by the legislators who sponsored the bill at the time was that persons with disabilities were an economic burden on society, and they would be happier if they were not born because living with disabilities is painful. Under the Eugenic Protection Act, a significant number of forced sterilizations were performed to prevent people with certain disabilities from having children.

At the end of the 1990s, victims started a campaign alleging the surgery was unreasonable, and from 2018, lawsuits began to spread across the country. Until recently, the problem with the Eugenic Protection Act had not been widely recognized even in the realm of constitutional law, but following a series of court cases, researchers came to recognize that there was a problem.

In this way, district and high court rulings that the law was unconstitutional piled up, and in July 2024, the Supreme Court ruled on multiple final appeals that it was unconstitutional. On a law that was thought to be correct when it was enacted, the victims raised their voices and the government finally admitted that the law was wrong.

Why was the Eugenic Protection Act enacted, which would probably be considered a violation of human rights by anyone now? Behind this was the discipline called eugenics.

Eugenics was proposed by a British scholar named Francis Galton. Galton, in his 1883 article “Inquiries into Human Faculty and its Development,” defined eugenics as a study aimed at improving the genetic nature of humans and preserving the superior. In other words, the study aimed to improve race by increasing the number of superior people and decreasing the number of inferior people. That is why they tried to reduce the number of persons with disabilities.

In the past, high birth and death rates were the norm due to problems such as poor sanitation. However, as we became more civilized, child survival increased even among the poor. Scholars at the time viewed this trend as problematic, believing that the quality of society as a whole would deteriorate if the poor were allowed to have many children while the rich were considering raising their standard of living and having fewer children. Therefore, eugenics emerged with the primary objective of suppressing the birth of what they called the “inferior.”

Eugenics spread to Europe, the United States, and Japan. In 1940, during the war, the National Eugenical Act was enacted in Japan, which allowed sterilization of “those with a predisposition to a malignant genetic disorder” and restricted abortion for “those with a healthy disposition.” Nonetheless, forced sterilization was not performed because the war could not be won without increasing the population first. This law existed until 1948, and the Eugenic Protection Act was newly enacted primarily in response to the population problem after the war.

Values were overturned by the spread of normalization voiced by the very people affected

One of the primary objectives of Japan’s Eugenic Protection Act was to suppress the birth of “inferior people,” as it stipulates “to prevent the birth of defective offspring.” The law assumed that sterilization should be performed as its means, either voluntarily or forcibly.

After losing the war, many Japanese withdrew from Manchuria and other places, causing food shortages in Japan. Under severe economic conditions, immigration to Brazil and other countries was also promoted to suppress the population. As part of the population policy, suppressing the number of children born was an important agenda for the government at the time.

As an example overseas, Germany actively promoted eugenic policies before the war, but after the war eugenic surgery was discontinued because of their experience with Nazism. On the other hand, such legal systems persisted after the war in Northern Europe and the United States. Even after the war, the prevailing perception in developed countries was that eugenics and eugenic surgery were necessary.

Meanwhile, in Denmark, for example, the idea of normalization spread in the 1950s, shortly after the war. It recognizes the right of persons with disabilities to live independently while participating in local communities. This was also triggered significantly by the efforts of the very people affected to claim that they, too, were members of society and to gain rights.

Eventually, the concept of normalization spread worldwide, and the United Nations adopted the Declaration on the Rights of Mentally Retarded Persons in 1971 and the Declaration on the Rights of Disabled Persons in 1975. International advocacy for the rights of persons with disabilities has expanded, and various countries have begun to revise eugenics policies. Furthermore, under the theme of “full participation and equality,” 1981 was designated as the International Year of Disabled Persons. The period from 1983 to 1992 was declared the United Nations Decade of Disabled Persons, and each country was set to work to resolve issues. Through an overturning of values, the laws and the systems suggesting that it would be better if persons with disabilities were not born in the first place have come to be considered flawed.

By the early 1980s, sterilization was hardly ever performed in Japan, and the Eugenic Protection Act lost its social effectiveness, but despite this, there was little movement to abolish it. However, at the United Nations International Conference on Population and Development held in Cairo, Egypt in 1994, the Eugenic Protection Act came under strong criticism when it came up as a topic that the law still remained in place in Japan. Two years later, it was reorganized into the Maternal Health Act.

Overturning the accumulated perceptions and guaranteeing human rights for all is a global agenda

Did the abolition of the Eugenic Protection Act promote the inclusion of persons with disabilities in society? In Japan, the Act for Eliminating Discrimination Against Persons with Disabilities was revised in 2021, and in April 2024 it became obligatory for businesses to provide reasonable accommodation to persons with disabilities. When persons with disabilities express their desire to have social barriers removed, businesses are obliged to take necessary and reasonable measures to the extent that the burden is not excessive. Reflecting on how the structure of society centered on able-bodied persons has excluded persons with disabilities, the reform of legal systems to create a more inclusive society must continue.

One legal system that can provide a clue to Japan in this regard is the Convention on the Rights of Persons with Disabilities, which was established in 2006 with the aim of including everyone. Until then, in the realm of law, it was considered natural for a person with insufficient judgment to have a representative make decisions. However, this convention is groundbreaking in that it clearly emphasizes support for the decision-making by persons with disabilities themselves, rather than by their representatives, in order to provide as much support as possible to help them make their own decisions. Some countries and regions around the world, such as Belgium and Quebec, Canada, have amended their laws in accordance with the spirit of the Convention on the Rights of Persons with Disabilities. In Japan, too, reform of systems such as adult guardianship is desired.

Researchers should also need to change their mindset. In the past, very few constitutional scholars believed that the Eugenic Protection Act was unconstitutional. As Japan recovered from the war as a democratic country, many constitutional scholars focused on how to nurture the people as sovereign citizens. With the establishment of the Constitution of Japan, the sovereign became the people rather than the emperor. This can be considered that the most important agenda then was how to make the sovereign think about society, make decisions, and vote.

It is obvious to me that while there has been a great deal of research in the fields of freedom of expression and political participation, perhaps reflecting this mindset, there has been little interest in the human rights of people such as persons with disabilities. Even in the realm of constitutional law, it was common for persons with disabilities to be put aside.

I believe the public needs to change its mindset as well. In response to the Eugenic Protection Act, during the 1960s, local governments started to actively carry out campaigns to prevent the birth of children with disabilities. In books and magazines about marriage, people with titles like Doctor of Medicine stated that it is the duty of parents to give birth to healthy children, provide them with proper education, and raise them to contribute to society.

Around the same time, the state-sponsored family planning program was promoted, and the idea that the ideal family should have only two or three children and provide them with a proper education was established in Japan. Japanese society, including the administrative bodies, created the image of an ideal person without disabilities, healthy, and good at studying.

It may be said that we are inheriting the image of an ideal family that excludes persons with disabilities and that has been instilled over the years. To give an example, the new type of prenatal diagnosis, which checks whether the baby in the womb has a disorder, can detect conditions such as Down syndrome with a high probability. If the test shows that the baby is a child with disabilities, abortion is legal in France and in many other countries (the legal provisions that allow abortion when the fetus is diagnosed with a disorder are called fetal clauses). In Japan, the fetus clause is not legislated, but data shows that about 90% of couples choose to have an abortion if the baby is diagnosed with a disorder. So the reality is that when you ask whether truly eugenics has disappeared, it leaves a big question mark.

In contemporary countries, as well as in modern countries, the idea that individuals should be economically and mentally independent, autonomous, and rational is a common understanding. Meritocracy in Japan based on labor productivity also reveals the idea that persons with disabilities who are not independent and autonomous do not deserve to have their human rights guaranteed. Overturning the perception that has accumulated over the years and guaranteeing human rights for everyone, including persons with disabilities, is an important agenda for Japanese society.

* The information contained herein is current as of April 2025.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
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