by Brian Hioe

Photo Credit: 洪申翰 Sun-Han/Facebook

THE TAIWANESE LEGISLATURE passed amendments to allow for gay couples to jointly adopt children who are not biological relations earlier this week, amending existing laws regulating adoption. Previously, it was required that for gay couples to jointly adopt, the child had to be the biological child of one of the couple.

The legal changes were passed after their third reading in the Legislative Yuan. Legislators supportive of the bill held up a banner celebrating that love was not limited by blood ties.

The move has been celebrated by LGBTQ advocacy groups, as another step toward equality in Taiwan. The change takes place four years after gay marriage was legalized in Taiwan. At the time, the lack of joint adoption rights along with that transnational gay marriages were not allowed unless the non-Taiwanese member of a couple was also from a country that had legalized gay marriage, were seen as deficiencies of the legal means by which gay marriage was legalized.

Facebook post on the lifting of passing of the amendments from the Taiwan Alliance to Promote Civil Partnership Rights

In particular, gay marriage was legalized in Taiwan after a ruling by the Council of Grand Justices in May 2017. The ruling mandated a two-year window in which relevant laws pertaining to gay marriage had to be amended, otherwise gay marriage would automatically be allowed.

It has taken time, however, for the deficiencies of the original laws legalizing gay marriage to be amended. After years of advocacy by the Taiwan Alliance to Promote Civil Partnership Rights and other groups that played a critical role in the push to legalize gay marriage, restrictions on transnational gay marriages were finally lifted in January.

This was one of the outgoing acts of Premier Su Tseng-chang’s cabinet, which was accomplished by way of the Ministry of the Interior issuing a letter to the Department of Household Registration requesting it to amend relevant procedures. The legal justification for the move was that marriage equality was now the common consensus of the land in Taiwan.

Nevertheless, it took some years for the move to occur. Namely, the Judicial Yuan announced that it had completed draft legislation on legal amendments that would lift some of the restrictions in November 2020. This was next to be reviewed by the Ministry of Foreign Affairs, the Ministry of the Interior, the Ministry of Justice, the Mainland Affairs Council, and other stakeholders. And though there were some case-by-case rulings allowing for transnational gay marriages, before this shift that came from the Su cabinet, this did not entail systematic change. The Executive Yuan also had a draft of a bill to lift the restrictions in January 2021. Yet it still took two years for the restrictions to finally be phased out.

This proved similar with regard to adoption rights for gay couples, then. Namely, amendments to Article 20 of the Act for the Judicial Yuan’s Implementation of Constitutional Interpretation No. 748, allowing for joint adoption for non-biologically related children, passed review by the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan in May of last year. But it still proved more than a year before legal changes were finally made.

Facebook post on the case-specific ruling for Chen Chun-ju and Wang Chen-wei from Equal Love TW

This, too, was predated by an individual case in which joint adoption was allowed.

Specifically, 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, with Wang having originally applied for adoption in 2017.

At the time, the Kaohsiung Juvenile and Family Court argued that the adoption could take place because 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 court’s argument 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. However, despite Chen and Wang’s legal victory, this, too, was case-specific

It is to be seen how conservatives, who claimed that the legalization of gay marriage would lead to the breakdown of the family as the basic unit of society, will react to the ruling. But, in the meantime, conservatives seem to have increasingly focused fire on the issue of trans rights, with an ongoing legal battle to remove surgical sterilization requirements before one is allowed to change one’s legal gender. In February, the Constitutional Court of the Judicial Yuan decided not to move forward with a constitutional interpretation for a case regarding the issue of proof of surgery as a prerequisite to changing one’s legal gender, instead sending this case back to the Taipei High Administrative Court.

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