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
In the event of a war with China, Taiwan has some surprisingly tough defenses that could make it as difficult to tackle as a porcupine: A shoreline dotted with swamps, rocks and concrete barriers; conscription for all adult men; highways and airports that are built to double as hardened combat facilities. This porcupine has a soft underbelly, though, and the war in Iran is exposing it: energy. About 39,000 ships dock at Taiwan’s ports each year, more than the 30,000 that transit the Strait of Hormuz. About one-fifth of their inbound tonnage is coal, oil, refined fuels and liquefied natural gas (LNG),
To counter the CCP’s escalating threats, Taiwan must build a national consensus and demonstrate the capability and the will to fight. The Chinese Communist Party (CCP) often leans on a seductive mantra to soften its threats, such as “Chinese do not kill Chinese.” The slogan is designed to frame territorial conquest (annexation) as a domestic family matter. A look at the historical ledger reveals a different truth. For the CCP, being labeled “family” has never been a guarantee of safety; it has been the primary prerequisite for state-sanctioned slaughter. From the forced starvation of 150,000 civilians at the Siege of Changchun
The two major opposition parties, the Chinese Nationalist Party (KMT) and the Taiwan People’s Party (TPP), jointly announced on Tuesday last week that former TPP lawmaker Chang Chi-kai (張啟楷) would be their joint candidate for Chiayi mayor, following polling conducted earlier this month. It is the first case of blue-white (KMT-TPP) cooperation in selecting a joint candidate under an agreement signed by their chairpersons last month. KMT and TPP supporters have blamed their 2024 presidential election loss on failing to decide on a joint candidate, which ended in a dramatic breakdown with participants pointing fingers, calling polls unfair, sobbing and walking
In the opening remarks of her meeting with Chinese President Xi Jinping (習近平) in the Great Hall of the People in Beijing on Friday, Chinese Nationalist Party (KMT) Chairwoman Cheng Li-wun (鄭麗文) framed her visit as a historic occasion. In his own remarks, Xi had also emphasized the history of the relationship between the KMT and the Chinese Communist Party (CCP). Where they differed was that Cheng’s account, while flawed by its omissions, at least partially corresponded to reality. The meeting was certainly historic, albeit not in the way that Cheng and Xi were signaling, and not from the perspective
RSS