In a trial in which five people from Hyogo Prefecture sought compensation from the national government for being forced to undergo sterilization under the former Eugenic Protection Law, the Osaka High Court in the second instance handed down a judgment ordering the government to pay compensation, contrary to the judgment of the Kobe District Court in the first instance, which dismissed the lawsuit on the grounds that the period for claiming compensation had expired.

Four and a half years after the lawsuit was filed and more than 5 years after the surgery, one of the plaintiffs, 2-year-old Kobayashi Touji, had filed a lawsuit with his wife, Kimiko, who passed away last year.

After the verdict, he said, "I want to tell my wife, 'Thank you for the verdict that has finally been issued.'"
(Osaka Broadcasting Station Reporter Muneaki Takeuchi Kobe Broadcasting Station Reporter Shun Ohata)

It was a dream "many children, a lively and fun home"

Left: Kimiko Kobayashi Right: Hoji Kobayashi

Kobayashi Toji (91) of Akashi City, Hyogo Prefecture, who is suing him, and his wife Kimiko, who died last year at the age of 89, said their dream was to have many children and build a lively and fun family.

In 1960, the two, both deaf, met in a matchmaking and soon married.

About three months later, I found out that Kimiko was pregnant.

Sudden abortion procedure

However, soon after, Kimiko was taken to the hospital and told by her mother that the baby was rotten.

Then, without further explanation, she was suddenly forced to have an abortion.

When Hoji's mother found out she was pregnant, she consulted with Kimiko's mother and had her undergo surgery.

Kobayashi Hoji:
"When Kimiko came home and asked, 'What's wrong?' she said, 'I'm not sure,' and when I looked at her stomach, she saw a scar about 15 centimeters long. What is this?' But I wasn't sure. Later, when I met my mother, she told me that I should not have children, which made me very angry. When I said, 'Why shouldn't I give birth?' my mother didn't answer. Kimiko was just crying."

I learned the reason for "forced sterilization" 58 years later

Why was Kimiko forced to undergo surgery?

The reason for this was that in 2018, a woman in her 60s in Miyagi Prefecture filed the first lawsuit in Japan to the Sendai District Court seeking damages from the national government, claiming that she was sterilized under the former Eugenic Protection Law and deprived of the right to bear and raise children.

Kimiko thought that she might have been harmed, and when she had a specialist doctor examine her, it turned out that she was apparently forced to undergo sterilization.

That year, he filed a lawsuit with the Kobe District Court seeking damages from the government.

At the time, Kimiko expressed her determination.

Kimiko Kobayashi
: "It is important that society change through the trial, and it is not just a problem for those of us who filed the lawsuit. I would like

to work so that people with disabilities can think about it as a problem for all people."

. Hoji: "It's been about 60 years since the surgery, but the sadness still continues. We cannot tolerate discrimination that inflicts such suffering."

The first trial dismissed the appeal after the "exclusion period" had elapsed.

However, the Kobe District Court in the first instance ruled that the former Eugenic Protection Law violated the Constitution and rejected the lawsuit on the grounds that more than 1 years had passed since the sterilization operation and that the "exclusion period" during which the right to seek compensation had passed.

Kobayashi and her husband appealed and asked for the government to recognize their liability for compensation in the second trial, but Kimiko died of illness in June last year.

"Judge, can you hear me?"

Five months later, in a statement of opinion held at the Osaka High Court in two trials, Ms. Hoji appealed.

Mr. Hoji's statement
of opinion: "I have spent 5 years with my wife with the sadness and loneliness of not being able to have children, but she also died of illness, and I am deeply saddened by her death. Please understand my feelings and make a correct verdict."

About four and a half years have passed since the lawsuit was filed, and two of the five plaintiffs, including Kimiko, have died.

Mr. Hoji has also been getting sick more and more recently, and I hope that the government will recognize his liability for compensation as soon as possible.

2 Court reversed victory recognizing the government's compensation

Then came the judgment of the second trial.

The Osaka High Court pointed out that the former Eugenic Protection Law was "extremely inhumane because it considers people with certain disabilities or diseases to be 'defective' and deprives them of the opportunity to make decisions to bear and raise children through surgery that makes reproductive function irreversible."

The court then changed the judgment of the first trial to state that "the government has created a situation in which it has fostered discrimination and prejudice and made it extremely difficult for plaintiffs to recognize that it is an operation under this law and that it illegally infringes their rights. He ordered the government to pay two couples, including Mr. Kobayashi, and one woman, 1.2 million yen each, for a total of 1.1650 million yen.

The Ministry of Health, Labour and Welfare commented, "We recognize that the government's claim was not recognized, and we will scrutinize the contents of the judgment and respond appropriately after consultation with the relevant ministries and agencies."

"I want to tell my late wife."

After the verdict, they held a press conference.

"I've been waiting for this day, and I'm really glad that the verdict was right. This calmed me down,"

he said, adding that he wanted to file a lawsuit with him and tell his wife, Kimiko, who passed away in June last year, about the results and share joy together.

One of the plaintiffs, Yumi Suzuki, 6, of Kobe City, who is disabled by congenital cerebral palsy, also expressed her joy.

Yumi Suzuki
: "I was really happy with the good verdict, I just wanted to live a normal life, but I couldn't have children because of my disability. The wounds of the body may disappear, but the wounds of the mind do not. I want the government to apologize quickly and say it was wrong."

Judicial decisions so far have been:

In a series of trials related to the former Eugenic Protection Law, 14 judgments have been handed down so far, and since February last year, seven judicial decisions have been made ordering the government to pay compensation, including this one.

In a series of court cases, the "time barrier" has stood in the way of victims of the old eugenic protection law, who are seeking judicial relief.

There has been a debate over whether to apply the "exclusion period," which means that the right to seek compensation is lost after 2 years of tort.

Four years ago, in the first ruling in Japan, the Sendai District Court ruled that the former Eugenic Protection Law was unconstitutional, but dismissed the lawsuit on the grounds that the period required for compensation had passed.

After that, the plaintiffs' lawsuits were dismissed one after another across the country on the grounds that the "exclusion period" had passed.

Last year, the government issued a compensation order for the first time, and the flow of not applying the "exclusion period"

Against this backdrop, in February last year, the Osaka High Court ruled that the former Eugenic Protection Law violated the Constitution and handed down the first judgment ordering the government to compensate in the second trial of the first trial, in which the Osaka District Court had also rejected the lawsuit.

The court pointed out that "the government seems to have justified and encouraged discrimination and prejudice against persons with disabilities," and judged that "allowing the application of the exclusion period as it is is grossly contrary to the principles of justice and fairness" because the plaintiffs had been in an environment where it was difficult to file a lawsuit for many years.

Since then, this is the seventh judicial decision ordering the government to pay compensation, including the Sapporo High Court on the 2th of this month, and all appeals have been accepted at the high court stage of the second trial.

Both rulings ordered compensation far exceeding the lump-sum payment of 1.2 million yen to those who underwent surgery under the national relief system, and it is expected that calls for a review of the relief system will increase.

A new judgment on the wall of time "to help more people"

In addition, the Osaka High Court's ruling presented a new judgment regarding the "exclusion period."

"The expellation period does not take effect until six months have elapsed from the earlier of the time when the government finds that the former Eugenic Protection Law violated the Constitution or when the Supreme Court decides that it violates the Constitution."

Regarding this decision, the plaintiffs' lawyers say that the plaintiffs' right to seek compensation has not been extinguished and that the time when the effect of the exclusion period will occur will be determined in the future, and that more people will be relieved in the future.

Meeting between the plaintiffs and their lawyers after the verdict

Seigo Fujiwara, the head of the plaintiffs' defense team, said, "The starting point for the government is to stop the
fight, meet with the victims properly, and apologize. The government has created a society in which people with disabilities live with a burden. The issue of eugenic protection is not over."