On Feb. 21, the Cabinet proposed a draft bill — titled “the enforcement act of the Judicial Yuan Constitutional Interpretation No. 748” — on same-sex marriage, hoping to have it passed by the Legislative Yuan by May 24, when same-sex marriage is to become legal by default.
A look at the draft shows that most articles of the Civil Code also apply to same-sex couples — so that same-sex marriage rights now seem to receive equal protection.
However, the regulations on adoption for same-sex couples might raise concerns and touch on the legality of surrogate mothers.
Article 1074 of the Civil Code states that when a couple adopts a child, they must do so jointly, unless one of them is adopting the other’s child.
Article 1079 states that any adoption is to be submitted in writing to the courts for approval.
Article 20 of the draft only states that one member of a same-sex couple can adopt the other’s children, without mentioning whether they can jointly adopt a child who is not the biological offspring of one of them.
The reasoning of the draft law seems to emphasize that the regulations address adoption of stepchildren, which seems to rule out the possibility of same-sex spouses jointly adopting a non-biological child.
This touches on the core of equal rights protection in Article 7 of the Constitution.
However, the reason for the legislation is not the law and carries no binding force. This means that once the draft is passed, if a same-sex couple files an application for joint adoption of a non-biological child, judges could offer varying interpretations.
If the courts were to reject such an application, the case would unavoidably lead to another constitutional interpretation.
In other words, if the draft is strictly interpreted, same-sex spouses would be denied the right to adopt a non-biological child.
Under such circumstances, same-sex couples without their own children are likely to turn to the Assisted Reproduction Act (人工生殖法).
According to Article 11 of the act, a hospital can perform assisted reproduction for a married couple when “the husband or wife of the married couple has been diagnosed as suffering from infertility ... and at least one member of the married couple possesses healthy reproductive cells.”
After external fertilization with sperm or oocytes donated by a third party who has not received compensation, the fertilized ovum can be transferred into the mother’s uterus.
The regulations must be expanded to include same-sex couples, but even if they were, there would still be problems to overcome.
For two women, after the ovum provided by one member of the couple is impregnated with donated sperm, it can be transferred into the mother’s uterus.
This does not conflict with the current legal framework.
The question is whether the fertilized ovum can be implanted into the woman who did not provide the ovum. This should be taken into consideration when amending the act.
As for two men, although there is no article in the law that bans surrogate mothers, clear regulations appropriate to that scenario are missing.
As surrogacy is a morally and ethically controversial issue, medical personnel might not dare enter that gray area.
That being so, the legalization of surrogate mothers might be a bigger, more difficult task than the protection of same-sex marriage.
Wu Ching-chin is an associate professor at Aletheia University’s Department of Law.
Translated by Eddy Chang
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