Sun, Oct 06, 2013 - Page 1 News List

Council invalidates ban on adoption of Chinese children

By Hsiang Cheng-chen and Stacy Hsu  /  Staff reporter, with staff writer

The Council of Grand Justices on Friday issued a constitutional interpretation declaring a portion of an article in the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (兩岸人民關係條例) unconstitutional, ending a long-standing ban on the adoption of the children of Chinese spouses by Taiwanese who already have a child.

Item 1 of Article 65 of the act, which prohibits courts from approving an adoption of Chinese children by Taiwanese with either a biological or an adopted child, runs counter to the doctrine of Article 22 of the Constitution and the principle of proportionality laid down in Article 23, and should become invalid upon the release of the interpretation, Interpretation No. 712 said.

Article 22 of the Constitution guarantees all individuals’ freedoms and rights that are not detrimental to social order or public welfare, while Article 23 stipulates that freedoms and rights should not be restricted by law, except in cases where doing so is necessary to prevent infringement upon the freedoms of others, to avert an imminent crisis, to maintain social order or to advance public welfare.

The interpretation said the item did not conform to the tenets of the Constitution stipulating that people’s marriages and families be systematically protected, their dignity safeguarded and their right to freely develop their personality guaranteed.

“While the purpose of the item is justifiable as it is meant to ensure Taiwan’s regional security and social stability, and the [adoption] ban has helped to achieve that purpose … the restriction is disproportionate to the Constitution’s efforts to protect social welfare and is therefore deemed inappropriate,” it said.

It also urged competent agencies to make timely revisions to the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area to keep it more in line with the latest changes in cross-strait political, economic and social relations.

The interpretation stems from an adoption case in 2007, in which a court ruled against the request of an 82-year-old Taiwanese, Wang Shao-hsiang (汪少祥), to adopt the son that his Chinese spouse, Liu Qian (劉茜), had with her ex-husband, on the grounds that Wang had already fathered three daughters with his ex-wife.

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