by Brian Hioe
Photo Credit: 象心力/WikiCommons/CC
THE KAOHSIUNG JUVENILE and Family Court made a historic ruling last month, allowing a gay couple to adopt a child that neither of the two is biologically related to. At the same time, the ruling is case-specific, only applies to that couple, and does not overturn current laws in Taiwan, which only allow gay couples to jointly adopt if the child is the biological child of one of the couple.
The family in question consists of Chen Chun-ju and Wang Chen-wei, as well as their child Rourou, which is a nickname. Wang applied for adoption in 2017 and Rourou began living with the couple in 2019. Adoption procedures were completed in January 2020, when Rourou was one-and-a-half years old.
Yet due to the couple’s inability to jointly adopt, only Wang is Rourou’s legal guardian. As a consequence, this resulted in situations such as Chen being shut out of the emergency room while Rourou was hospitalized due to a urinary infection, due to legally being a stranger to Rourou.
Podcast by Taiwan LGBT Family Rights Advocacy that the couple previously appeared on
Chen and Wang will now be able to jointly register as Rourou’s adoptive parents. The ruling took place on December 25th, but was publicized on Tuesday.
Due to the fact that the law legalizing gay marriage in Taiwan, the Act for Implementation of Judicial Yuan Interpretation No. 748, did not specify what should be done for same-sex couples that are adopting children biologically unrelated to them and only children that are biologically related to them, this prevents joint adoptions from taking place. Gay marriage was legalized in Taiwan in May 2019, following a ruling by the Council of Grand Justices that specified that laws to legalize gay marriage needed to be passed within two years.
The Kaohsiung Juvenile and Family Court made its ruling on the basis of an argument that Article 20 of the law did not explicitly forbid gay couples from jointly adopting, ruling that it would be inappropriate for the court to prevent the adoption from taking place. The Kaohsiung Juvenile and Family Court also cited the Convention on the Rights of the Child, one of the international conventions voluntarily ratified by Taiwan, which was passed into law in 2014.
Although it is to be hoped that this line of argumentation will be more broadly generalizable and it is true that other courts may follow suit in making similar rulings, there are instances in which gay couples have not had courts rule in their favor. According to the Taiwan Equality Campaign, a coalition organization that was pivotal in the legalization of gay marriage in Taiwan, there are two other couples that were not allowed to jointly adopt that it has tried to assist.
The ruling with regards to the Wang-Chen family follows suit from a number of case-specific rulings about laws pertaining to gay marriage. For example, after the legalization of gay marriage, there remained limits on transnational gay marriages. Taiwanese nationals can only marry individuals from countries that have also legalized gay marriage.
In November 2021, courts ruled in favor of a Taiwanese-Singaporean couple, Xiao C and Mei-ping, allowing them to get married despite that Singapore has not legalized gay marriage. This took place following a two-year court battle.
Likewise, in May 2021, a court ruling allowed Taiwanese national Ting Tse-yan to marry his partner Guzifer Leong, from Macau. This also took place following a two-year court battle. However, both rulings were case-specific and did not change laws writ large, though they set helpful legal precedents.
Facebook post on the ruling from Equal Love TW
The Executive Yuan and Judicial Yuan have both completed draft bills for lifting some of the currently existing limits on transnational gay marriage in January 2021 and November 2020 respectively, which are to be sent to the legislature for review. Nevertheless, one observes significant delay on the issue.
Indeed, this may also affect efforts to allow gay couples to jointly adopt, in that there has been much tarrying on the issue and there is little incentive for politicians to take quick action on the issue. Further advocacy on the issue, particularly with an eye to raising awareness of the issue, may be needed at this juncture.
That being said, a recent victory by LGBTQ advocates led to changes in September 2021 to laws previously requiring surgery for individuals hoping to legally change their gender. One notes this was another instance in which the tactic of appealing to international conventions ratified by Taiwan was used in the court case. In this case, this was the International Covenant on Civil and Political Rights, International Covenant on Economic Social and Cultural Rights, and Convention on the Elimination of All Forms of Discrimination Against Women.