As someone who regards herself a “friend of the court,” I recently took part in a press conference held before the first hearing of an appeal by a lesbian nicknamed Da Gui (大龜), or “big turtle,” who had been denied the right to adopt her same-sex partner’s child. The couple’s predicament is very moving. Let us hope that Taiwan’s legal system, which has three times denied this couple’s wish to establish a family, can still set things aright.
Let us consider three facts.
First, the Artificial Reproduction Act (人工生殖法) limits artificial reproduction to opposite-sex married couples.
Second, agencies that have the power to interpret and apply the Civil Code only allow opposite-sex couples to register their marriages.
Third, the Civil Code stipulates that one partner — either the husband or the wife — of a heterosexual married couple may adopt the children of the other partner to be his or her stepchildren.
If same-sex partners want to raise children and form a family that enjoys legal protection, they are currently forced to travel overseas to a country whose regulations concerning marriage and adoption are more equitable.
Taiwan’s existing regulations and judicial practice often dash the hopes of such people from three aspects — reproduction, intimate relations and adoption — and have repeatedly proved to be out of touch with social reality.
Germany is one of the few countries in Western Europe that maintains a two-track system with regard to heterosexual and same-sex couples, treating them separately and unequally. While opposite-sex partners can get married, same-sex couples are registered as cohabiting life partners. Even though this legal setup has come in for no end of criticism, it does now offer both married people and cohabiting life partners the same possibility of adopting the biological children of their spouse or partner as stepchildren.
Furthermore, in 2013 the German Federal Constitutional Court went a step further by declaring that the original regulation in the German Civil Code that only a partner in a married couple could adopt children who had been adopted by the other partner before they got married (ie, successive adoption) was in violation of the principle of equality enshrined in the German Grundgesetz (constitution), and set a deadline of June 30 last year for legislators to amend the law accordingly. However, in Taiwan, same-sex couples to this day face numerous difficulties with regard to both step-parent adoption and successive adoption.
What can be done about this?
Will Taiwanese and the judicial system seize the opportunity and bravely face the challenges, fearlessly confronting any misunderstandings and fear we may have about homosexuality and same-sex love, so that we can dismantle this issue that the Ministry of Justice sees as being in conflict with our country’s traditional values and cultural standards?
The two main political parties’ presidential candidates have thus far not had the courage to confront this issue, instead saying that it should be set aside until there has been sufficient dialogue to produce a social consensus. In fact, the goal is not so hard to reach.
The adoption of a partner’s child in a homosexual family can be addressed in three ways.
Giving consideration to children’s best interests is an important principle of Book IV of the Civil Code, which governs family affairs. As a university lecturer, I have conducted countless opinion polls among students, in which children say that the most important thing to consider is couples’ willingness and ability to raise children.
What children care about is whether their parents are able to provide for them, whether they have time to accompany them as they grow up, whether they can provide a safe and loving environment, whether they are capable of resolving differences of opinion and conflicts in day-to-day life and so on. Children are not particularly concerned about parents’ gender or sexual orientation.
Who are the best caregivers? Who can have a happy and successful family?
The image of a happy family that traditional textbooks instill in our minds is a model in which a man and a woman live together under the same roof with their children born in wedlock and in which the woman runs the home while the man is in charge of external matters.
However, the reality is that the presence of a man does not necessarily provide fatherly love and the presence of a woman does not always provide motherly love. The presumed division of domestic responsibilities hardly reflects the heavy burdens that parents have to bear together in their daily lives. Those who are willing and determined and have a plan for the future, irrespective of gender, sexual orientation and gender identity, are all capable of forming happy and successful families.
There are countless different kinds of families in Taiwan that are not recognized under the traditional formula.
In several rulings concerning lesbians’ right to raise children, their petition has been rejected on the grounds that it is in the best interests of the children to protect them from prejudice in school. We should stop telling people who are the objects of prejudice and discrimination to suffer in silence and hide themselves away.
What really makes people’s lives sad and difficult is the standards imposed in schools, families and all areas of society and built-in to the judicial system that favor heterosexuality, men, the Han ethnic majority and the middle class.
There is nothing wrong with gay men and lesbians wanting to raise children — the fault lies with our society, which, as a whole, seems incapable of reflection. It is still possible for the judicial system to set things aright. When judges are applying laws, they may suspend trials and petition the Council of Grand Justices to make an interpretation.
Although such petitions may not succeed, it is possible that as such cases circulate through the various levels of law courts, they might prompt the judges and grand justices who handle them to examine their own homophobic attitudes, reflect upon their understanding of gender relations in Taiwanese society and update their mental image of what constitutes a happy life.
Chen Yi-chien is chairperson of the Awakening Foundation and an associate professor in the Graduate Institute for Gender Studies at Shih Hsin University.
Translated by Eddy Chang and Julian Clegg
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