Brian Hioeby Brian Hioe
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CHANGES TO ARTICLE 20 of the Act for the Judicial Yuan’s Implementation of Constitutional Interpretation No. 748 cleared review by the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan late last month. The proposed amendment would allow for joint adoption of the adopted child of one member of the couple. Current laws only allow for an individual to adopt the biological child of their partner.
Despite the legalization of gay marriage in Taiwan in May 2019, such limits on gay adoption rights have remained on the books. Namely, the Act for the Judicial Yuan’s Implementation of Constitutional Interpretation No. 748 did not specify what should be done for same-sex couples that are adopting children biologically unrelated to them, only children that are biologically related to them. This ambiguity may have been deliberate on the part of lawmakers, so as to avoid controversy from opponents of the legalization of gay marriage, particularly seeing as such individuals claimed that the legalization of gay marriage would result in the destruction of the heterosexual family and the erosion of social institutions founded upon the family.
A gay couple, Chen Chun-ju and Wang Chen-wei, was able to adopt a child that was biologically unrelated to either of them after a December 2021 ruling by the Kaohsiung Juvenile and Family Court. The child, known publicly by the nickname Rourou, began living with the couple in 2019, with adoption procedures completed in January 2020, when Rourou was one-and-a-half years old. Wang originally applied for adoption in 2017.
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The Kaohsiung Juvenile and Family Court argued that the adoption could take place due to the Act for the Judicial Yuan’s Implementation of Constitutional Interpretation No. 748 did not explicitly forbid gay couples from adopting children that are not biologically related to them. The ruling 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. At one point, Chen was not allowed into the emergency room after Rourou was hospitalized with an infection due to legally being a stranger to her.
Nevertheless, the ruling was case-specific and does not apply to other gay couples, with at least two other gay couples known to have been denied joint adoption of their child. It is hoped that the changes to Article 20 will resolve this issue.
At the same time, whether the Taiwanese legislature will take any action on the issue is to be seen. The issue of joint adoption for gay couples will now be negotiated between the two major parties.
In particular, LGBTQ advocates are hopeful that in the three years since the legalization of gay marriage, approval of gay marriage has risen from 37.4% in 2018 to 60.4% last year, and approval of gay adoption rights has grown from 53.8% in 2018 to 67.2 % last year, according to a Ministry of Justice survey.
At the same time, the government has dragged its feet on unresolved issues related to gay marriage. For gay couples from different countries to marry in Taiwan, one member of the couple has to be Taiwanese, and the non-Taiwanese member of the couple has to be from a country that has also legalized gay marriage.
Similar to the ruling with regards to Rourou and her parents, there have been several rulings in which Taiwanese were allowed to marry their non-Taiwanese partners. But such rulings have been case-specific and do not have broader applicability, even though they may offer important legal precedents for widening the scope of transnational gay marriages in Taiwan.
The Ministry of the Interior currently cites Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements to block such transnational gay marriages from taking place. Yet while the Judicial Yuan submitted a proposal to the Executive Yuan to revise the Act Governing the Choice of Law in Civil Matters in January 2021, following which it would be sent to the Legislative Yuan, there has been little action on the matter since then.
It is possible, then, that one will see similar delays from government institutions with regard to the issue of transnational gay marriages. As such, it may be quite some time before action is taken on the issue, with the government instead dragging its feet.