A family court on Dec. 25 last year approved an appeal from a partner in a same-sex marriage, allowing him to become the adoptive father of a child originally adopted by his partner before they got married.
The case is the first in Taiwan in which both partners in a same-sex marriage have been legally allowed to adopt a child to which neither are biologically related.
The ruling, which was made public on Tuesday, meant that the couple, Wang Chen-wei (王振圍) and Chen Chun-ju (陳俊儒), would be able to register Chen as a parent to the child, nicknamed “Joujou,” at their local household registration office next week.
The court said the ruling was in the best interests of the child.
“Finally, the issue of Joujou’s parental rights has come to an end,” Wang wrote on Facebook.
However, while the decision is a breakthrough for the couple, who have fought for Chen to be able to adopt Joujou for more than two years, it does not offer a general precedent, Wang said.
“We will continue to fight. The key is having the law revised,” he wrote. “If our family wants to adopt another child, will we have to go through the same process again and gamble on which judicial affairs officer we get? Or will the law have been amended so it won’t be so hard for everybody?”
Wang referred to a lack of legislative clarity and the wide latitude for interpretation a judge or, in this case, a judicial affairs officer has to decide same-sex adoption cases.
The Act for Implementation of Judicial Yuan Interpretation No. 748 (司法院釋字第七四八號解釋施行法), which legalizes same-sex marriage, stipulates in Article 20 that if a partner in a same-sex union “adopts the genetic child of the other party,” civil law provisions on adoption would apply.
The law makes no mention of what happens if the child was adopted, leaving couples in Wang and Chen’s situation in limbo.
In their case, the Kaohsiung Juvenile and Family Court decided that Article 20 does not explicitly “prohibit the adoption of adopted children,” and that it would be “inappropriate to give a negative or discriminatory interpretation of the provision.”
The primary consideration in the case should be the best interests of the child, it said, adding that civil law provisions on adoption should apply.
A child should not be discriminated against because of their parents’ status, the court said, citing the Convention on the Rights of the Child, which was enshrined into law in Taiwan in 2014.
However, other courts have been less willing to go beyond the letter of the law in similar cases.
The Taiwan Equality Campaign, a gay rights group that helped Wang and Chen along with two other couples seeking adoption, on Tuesday said that the two other couples had their request for adoption rejected, citing the courts as saying that the law did not specifically allow it.
The group said that the two couples would appeal the rulings.
However, the group’s ultimate goal is to achieve a constitutional interpretation by the Council of Grand Justices on the issue, as the campaign to legalize same-sex marriage used a similar tactic, it said.
A revision of the law is needed to provide greater clarity on adoption rights, the group said.
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