The Ministry of Health and Welfare (MOHW) has planned to legalize surrogacy. Although it is still unknown whether the MOHW amendment would pass the legislative process, the controversial issue, which has been debated for two decades, would likely be resolved.
The predecessor of the MOHW, the Department of Health, once banned surrogacy in Article 7.5 of the Regulation of Assisted Reproductive Technology’s (人工協助生殖技術管理辦法). The regulation was not legally binding and would be abolished in 2007, when the Assisted Reproduction Act (人工生殖法) was enacted.
In the new act, Article 11.1 specifies that if a husband or wife in a married couple has been diagnosed as infertile, and at least one of them possesses healthy reproductive cells, they may undergo assisted reproduction with a donor who provides sperm or oocytes for fetal development and birth without compensation. Obviously, the law is meant to preserve monogamy and hence excludes those who are not legally married. At the same time, it emphasizes that a wife’s uterus should be the one to carry the fetus, which means that the role of “surrogate mother” is legally denied.
Therefore, based on the law, if the wife of a married couple is unable to carry a fetus, the couple cannot give birth to a child through assisted reproduction.
Since same-sex marriage was legalized in Taiwan, in the case of two married women, one of the women can be the recipient of a donor’s sperm and carry the fetus. Yet where two men are married, due to the absence of a womb, it is impossible for them to receive assisted reproduction without a female surrogate. Therefore, if they abide by the law, they are unable to raise a child that is their blood relative.
Although the existing law negates the role of surrogate mothers, the reproductive assistance provided by a female surrogate is not entirely illegal. According to Article 31, “Whoever engages in the business of sale or brokering of reproductive cells or embryos in respect of profit shall be punishable with imprisonment for not more than two years.” The penalty is exclusively for those who seek to profit from the enterprise, not for married couples or female surrogates. In this sense, if surrogates do not receive any commission, or those with infertility contact female surrogates by themselves, no one would be penalized in a legal sense.
Yet, before the role of surrogate mothers is legally recognized, medical agencies and healthcare workers would be unlikely to take the risk. Hospitals and medical professionals cannot afford to be fined or have their licenses suspended. Today, the only choice for two married men wanting to have a child through surrogacy is by going abroad, at great financial cost.
It is highly likely that surrogacy will be legalized soon. Parent-child relationships would be redefined, and the officials would have to lay out the eligibility for reproductive assistance and the qualifications for a surrogate mother. Additionally, whether female surrogates should receive compensation should also be discussed. With compensation, surrogacy is likely to be commodified, and hence, women with lower economic status might be used as a tool for pregnancy. Without compensation, there would be a limited amount of money to cover the costs of pregnancy, childbirth and postnatal care. That way, it could be hard to find a surrogate willing to go through the entire process.
The government and MOHW should deliberate these issues and come up with a more comprehensive plan for legalizing surrogacy.
Wu Ching-chin is a professor in the department of law at Aletheia University and director of the university’s Criminal Law Research Center.
Translated by Emma Liu
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