On May 24, the Council of Grand Justices issued its Interpretation No. 748 on same-sex couples’ freedom to marry, but surrounding controversies continue.
One question is how to build this marriage right into the legal system. Another is how to define and regulate parent-child relations.
The question of whether presumption of legitimacy should apply to the children of same-sex marriages will have a great effect on the rights of such children regarding the status of their relations, so this question must be handled in an appropriate manner.
Article 1063 of the Civil Code states: “Where the wife conceives during the continuance of a marriage relationship, a child so born is presumed to be legitimate” — meaning born in wedlock. This is what is known as the presumption of legitimacy.
If the Civil Code is to be applied equally, the presumption of legitimacy should apply to the children of same-sex and opposite-sex marriages.
However, same-sex couples alone cannot reproduce naturally. For example, in a marriage between two women, they cannot have children without using another person’s sperm.
The relation between a birth mother and her child is presumed to be legitimate, but the other spouse could disown the child at any time, even without a maternity test, which would be highly detrimental to the stability of a child’s relations.
If same-sex marriages are not afforded the presumption of legitimacy, not only would the regulation not be applied equally, but all children born to same-sex partners would be illegitimate — meaning born out of wedlock. For the spouse who did not give birth, the only way to establish a parent-child relationship would be through adoption.
However, if that spouse is the ovum donor, that would be contrary to Article 1073-1 of the Civil Code, which stipulates that a person cannot adopt his or her own child.
If the other (non-pregnant) spouse wants to acknowledge the child, given that Article 1065 of the Civil Code stipulates that only the natural (biological) father can so acknowledge, then in marriages between two women, there is still room for debate as to whether the other partner to the pregnancy is the natural father.
When same-sex marriage is legislated into the legal system, for a couple in which one provides the ovum and the other carries the child, there are likely to be arguments over whether the child is legitimate by mutatis mutandis application of Article 1064 of the Civil Code, which says: “A child born out of wedlock whose natural father and mother have concluded a marriage to each other is deemed to be legitimate.”
To say that the Civil Code should apply equally to same-sex and opposite-sex marriages while also saying it does not apply when presuming legitimacy is contradictory.
Given that Interpretation No. 748 says that safeguards for same-sex marriage cannot influence regulations regarding opposite-sex marriage, legislation must move away from the Civil Code’s conception of legitimacy. This would safeguard the children of same-sex marriages without influencing the Civil Code.
I suggest adding an article to the Artificial Reproduction Act (人工生殖法) that says: “The regulations of this act also apply to same-sex marriages” or adding a chapter to the Civil Code that includes the following two articles:
The first would read: “In same-sex marriages, except as otherwise provided by law, the establishment, dissolution and legal effect of family relations are governed by this law [the Civil Code], except that they are not subject to the regulations of Article 1063.”
This article would make same-sex marriage equivalent to opposite-sex marriage while avoiding controversies over mutatis mutandis application or equal application.
The phrase “otherwise provided” refers to laws such as the Artificial Reproduction Act. By only excluding the presumption of legitimacy, in a marriage in which one partner provides the ovum and the other partner bears the child, it enables the ovum donor to establish a parent-child relationship by mutatis mutandis application or by the regulations about acknowledgment.
As for marriages between two men, since they cannot conceive or give birth and are therefore not governed by the Artificial Reproduction Act, the questions of application by mutatis mutandis or acknowledgment do not arise.
The second article would read: “In a same-sex marriage, one of the spouses may, by means of artificial reproduction, having obtained the agreement of the other spouse, bear children through conception with sperm donated by another person, and the children to whom she gives birth will be deemed legitimate.”
On this basis, children born through artificial reproduction in a same-sex marriage would be considered children born in wedlock, as per the Artificial Reproduction Act, and the mother and children could not claim acknowledgment of paternity from the sperm donor based on Article 1067 of the Civil Code.
The presumption of legitimacy would not apply to children born by methods not covered by the Artificial Reproduction Act. In such cases, the birth mother would decide whether to claim acknowledgment from the biological father, for the biological father to acknowledge paternity, or for the child to be adopted by the birth mother’s same-sex spouse.
Interpretation No. 748 states that the legislature must deal with the issues raised in the interpretation within two years; otherwise same-sex marriage partners may apply for household registration anyway.
However, in the latter situation, disputes that might arise after registration would cause uncertainty about the official relations of such couples’ children.
Quarrels between supporters and opponents of same-sex marriage can only hurt the children concerned.
Hopefully government officials will consider these suggestions and not turn same-sex marriage legislation into something that makes judges sad, lawyers happy and taxpayers foot the bill.
Teng Shyue-ren is a professor of law at Central Police University.
Translated by Julian Clegg
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