Tue, May 14, 2019 - Page 8 News List

Protecting same-sex union children

By Kuan Hsiao-wei 官曉薇

A same-sex union special act drafted by HTC chairwoman Cher Wang’s (王雪紅) Faith, Hope and Love Foundation and proposed by Democratic Progressive Party (DPP) Legislator Lin Tai-hua (林岱樺) proceeded to a second legislative reading on May 3. Alongside the Executive Yuan’s “enforcement act of Judicial Yuan Interpretation No. 748” and a “same-sex family members special act” sponsored by Chinese Nationalist Party (KMT) Legislator Lai Shyh-bao (賴士葆), the three draft bills were on Thursday sent to cross-caucus talks presided over by Legislative Speaker Su Jia-chyuan (蘇嘉全).

Laws formulated to cover family members and relatives, marriages or any horizontal union between two people should never disregard a family’s vertical relationships. There are already many same-sex families in Taiwan whose children were born after an anonymous sperm donation and artificial insemination. These children are lineal descendants of one of the parents in a legal parent-child relationship.

What requires particular consideration from lawmakers is how to give the other spouse in the same-sex marriage — who is not the biological parent, but who is willing to raise the child with their partner — the legal right to rear, protect and educate the child with the partner in the best interests of the child, rather than the adults.

This seems to be the core concern for people who trumpet the protection of family values and advocate the concept of family responsibilities. Parents determined to give birth to children and raise them together should also be allowed to jointly exercise their rights and fulfill their responsibilities. The law should recognize the parent-child relationship between the non-biological parent and their partner’s child.

This is why the Cabinet’s draft, written by the Ministry of Justice, allows a spouse in a same-sex marriage to adopt the other spouse’s biological children.

The court, after ensuring that the spouses want to jointly raise the child and that the relationship is in the child’s best interests, approves the adoption, which grants parent-child rights, but also the obligation to care for the child — in the same way as for heterosexual families. Stable relationships not easily renounced are in the best interest of adopted children.

Lin’s and Lai’s bills only allow a spouse in a same-sex marriage who is the biological parent to grant the other spouse — who is not a blood relation of the child — partial guardianship. Their idea is that guardianship would allow the spouse of the biological parent to contribute to the child’s care and protection. The same mechanism exists in the Civil Code (民法) and most people in a same-sex relationship have already authorized their partner to be the guardian of their children.

In principle, the law allows biological parents to authorize any trusted person to perform the function of a guardian, regardless of their relationship to the child. Even a nanny can be the authorized guardian of a child.

From a legal perspective, should two parents who bring up a child together be considered nannies or parents? The Lin and Lai versions prefer creating a guardianship that can be terminated, leaving children who are used to having two people caring for them with only one.

What does that mean for the family stability that Lin and Lai advocate for or their position that having two parents is better than one? The adoption approach gives the child greater security. An adoption can only be broken by a court, not the will of the parents.

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