Last month finally saw some movement on the LGBTQ equality front, as the legislature’s Judiciary and Organic Laws and Statutes Committee passed a preliminary review of an amendment that would allow same-sex couples to jointly adopt children.
The amendment to the Act for the Judicial Yuan’s Implementation of Constitutional Interpretation No. 748 (司法院釋字第七四八號解釋施行法) still has some way to go before passage and its eventual enactment, with the next phase being cross-party negotiations. Still, it is refreshing to see progress — however slight — after three years of legal battles following the passage of the act in 2019.
The change seeks to right an omission in the statutes on adoption long criticized by LGBTQ and children’s advocates. As it stands, Article 20 of the law only permits a spouse to adopt the biological child of their partner, refusing by omission adoption of a child not related to either partner. Laws on assisted reproduction are also limited to “a husband and wife” under the Assisted Reproduction Act (人工生殖法), meaning that even couples biologically capable of bearing children cannot legally do so.
In practice, this means that children can only be adopted by one spouse, leaving the other a legal stranger to their child. If the unthinkable were to happen to the legal parent, their child would become a ward of the state, despite still having a parent, not to mention the litany of other rights denied them, such as medical power of attorney and parental leave.
This denial not only harms the rights of the couple, but also of the children who could be denied parents without any reason other than the mistaken belief that same-sex parents are less capable than different-sex parents. Considering all the extra hurdles same-sex parents must jump to become parents, it stands to reason that they are, if anything, among the best prepared. Especially with the adoption rate being only about one-third, any chance to pair children with loving parents should be supported.
Even though the law has not yet formally changed, one couple in January finally became legal parents after a court granted the second partner full parental rights, becoming the first same-sex couple in Asia to do so. Chen Jun-ju (陳俊儒) and Wang Chen-wei (王振圍) had hoped that marriage equality in 2019 would allow Chen to formally adopt their daughter, nicknamed Joujou (肉肉), but were disappointed to find that marriage would still be unable to make their family whole in the eyes of the law.
Although two other comparable cases were brought at the same time, only Chen and Wang were granted full parental rights, with the officer presiding over their case citing the omission in the law of any specific mention of non-biological children, as well as the best interests of the child. In the other two cases, the courts were unwilling to read the omission as granting legal leeway.
The framers likely fabricated this confusion when they wrote the law, intending to avoid angering either side of the heated adoption debate. By never explicitly mentioning non-biological children, courts were granted power of interpretation, even if they have not been willing to use it.
Now sentiment has shifted, with a government survey last month finding 71 percent of respondents believe same-sex couples should have the right to adopt, while 71.8 percent believe they can be good parents. As Democratic Progressive Party Legislator Cheng Yun-peng (鄭運鵬) said when the amendment passed the committee: “Now it is time for Taiwan to take care of the next generation.”
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