MON 1100 G02 LIN - the World Congress on Family Law and

Lesbian Parenting in Taiwan:
the Emerging Legal Challenges
Yun-hsien Diana Lin, Associate Professor
Institute of Law for Science and Technology
National Tsing Hua University, Taiwan
[email protected]
I. Introduction
Taiwan Alliance of Lesbian Mothers (formed in 2005):
 comprises of lesbian members ranging from age 20 to 60
 provides useful information of parenting skills, flow charts of
adoption, and guidance to self insemination
 a recent survey of 1523 lesbian women in Taiwan: 66.5% said they
wish to have a child or would
seriously consider about the
Same-sex marriage not legally
recognized in Taiwan:
Marriage is defined as “a legal
and permanent union of a man
and a woman”
II. Establishing Parent-Child
Relationships Through The Law
In many cases, children living with same-sex couples are
the biological offspring of one member of the couple
by an earlier marriage or relationship.
Who is the parent in the eyes of the law?
 The legal mother: according to Taiwan Civil Code, the legal
mother is the person who gives birth to the child, not the
person who is genetically connected to the child.
 The legal father: fatherhood is established by virtue of
marital status at the time the child is conceived or is born
II. Establishing Parent-Child
Relationships Through The Law
Assume that mother A and father B were married when
mother gave birth to her daughter D. After a few years,
mother divorced father and later moved in with lesbian
partner C :
 Mother A’s status of parents may not change, but
custody or visitation rights may be affected
 Some courts in Taiwan considered a parent's
homosexuality a sufficient reason for restricting the
visitation and custody rights without a showing of
adverse effect on the child
II. Establishing Parent-Child
Relationships Through The Law
Assume further that partner C became attached to D and
treats her like a daughter. Several years later, the
relationship breaks up and A and C are separated. C
requests a court for liberal visitation with D:
 C's requests for visitation will be denied: only legal mother
and father have standing to petition for visitation with the child,
and C is neither. (Taiwan Civil Code, Article 1055, Section 5)
 Even during C and A’s cohabitation, C’s request to adopt D
will be denied: because D has already a legal mother A, it is not
possible for her to be adopted by another woman without
terminating the legal mother's rights.(Taiwan Civil Code, Article
1077, Section 2)
 Even if C has performed parenting functions, she is not a legal
parent and has no substantive rights over the child D.
III. Lesbian Parenting through Adoption
 Adopt as a lesbian couple :
not recognized by the law, because only a husband and a wife may
file for adoption together.
“Second parent adoption” is allowed but only granted for married
heterosexual couples. Co-habitants and same-sex couples are
excluded from such type of adoption. (Taiwan Civil Code, Article
 Adopt as a lesbian woman:
In 2007, a lesbian woman in Taiwan filed for an adoption of her
sister’s baby girl in the Taoyuan District Court. The Taiwan Civil
Code did not prohibit single adults from adopting children, but all
petitions must be granted by the court according to the adoptees’
best interests. (Taiwan Civil Code, Article 1079, Section 1)
As a normal practice, the court requested social workers from the
Taiwan Fund for Children and Families (NGO) to perform home
study and evaluation before the decision.
III. Lesbian Parenting through Adoption
The social worker’s report revealed that:
 Economic condition: the petitioner works as a night shift operator
with a stable income and not in any debt
Physical and psychological condition: the petitioner is healthy,
identifies herself as a lesbian, has masculine appearance and quiet
Family, friends and other support: the petitioner lives with a female
partner, who expressed her wish to take the adoptee as her daughter.
Besides, the petitioner’s mother, who understands and accepts the
petitioner’s lesbian identity and has good interaction with the
petitioner’s partner, said she will help to take care of the child.
Incentives of adoption: the petitioner and her partner have lived
together for years and both wish to have a child
Conclusion of the report:
the social worker had concerns that the adoptee might have confusions
over gender roles and the terms referring to father and mother. Except
for that, the petitioner is qualified for adoption.
III. Lesbian Parenting through Adoption
The court’s opinion: petition was not granted
The rational:
 the child is likely to view her caretakers as role models and
learn from them on gender identity and gender role
 however, homosexual people in Taiwan do bear stigma and
prejudice from the society
 It is predictable that the child would be under a lot of
pressure from her peers, such as being ridiculed by
classmates, due to her gender identity, gender expression,
and her understanding of gender role
 Therefore, the court is reluctant to put a child
in the situation of foreseeable harm
III. Lesbian Parenting through Adoption
What is wrong with the court’s opinion?
 “…The court holds a positive and open attitude toward
homosexual individuals, since it is personal freedom chosen
by adults, that should be respected…”;
“…An adult should be cautious not to put a child who is not
yet able to think, object, or make a choice into a situation
where pressure from peers is foreseeable, just to achieve
one’s expectation of a complete family. It would not be fair
for the child.”
The discourse appeared to be an issue of the best interests of
the child.
The court wrongly assumed: 1. the child will adopt the
parent’s sexual orientation and gender identity; 2.being raised
by lesbian parents will bring confusion to the child’s
understanding of “gender”
Empirical studies all over the world have proved differently:
the concerns are groundless
IV. Lesbian Parenting through New
Reproductive Technology
New reproductive technologies make it possible for women to
conceive children through artificial insemination without a
male partner.
Taiwan Artificial Reproduction Act, Article 11:
A hospital or a clinic shall not perform artificial reproduction
for a married couple unless:
 1. the husband or the wife is diagnosed as infertile or has a
major hereditary disease that natural conception and birth is
likely to cause abnormal children;
 2. at least one member of the married couple is able to
produce healthy gametes;
 3. pass physical and psychological assessment;
 A single woman or a lesbian couple can not legally accept
the treatment of artificial insemination or in vitro
fertilization (test tube baby).
IV. Lesbian Parenting through New
Reproductive Technology
How lesbian couples in Taiwan resist/circumvent multiple
barriers in their path to become parents:
 entered into sham marriages
→ a marriage will bring about many complicated interpersonal and
legal issues
 achieved pregnancy through self insemination
→ commercial supply of human embryos & gametes are prohibited
→ using a friend’s sperm: the involvement of a male acquaintance
may become a cause of future custody disputes
 turned to private clinics
→ subject to doctors’ homophobia and unreasonably expensive fee
 fly to other countries for legal artificial insemination
→ only the gestational mother will be recognized as the legal mother
under Taiwanese law, not her partner, even if she donated egg
V. Activities of Law Making
The Basic Law for Gender Equality (Draft), purposes:
1. to establish the Gender Equality Council of Taiwan Executive
Yuan (the Cabinet) and equip it to be the highest authority in
charge of gender equality issues.
2. to provide overarching principles for gender equality in aspects
of political participation, employment, family relations,
education, safety, media and culture, health care, social and
economic benefits, technology development, process involving
judiciary and police…etc.
 expand the definition of “sex discrimination” to include
different treatment, exclusion or limitation based on gender,
sexual orientation, and gender identity that denies equal rights
in various spheres of life.
 Article 18: alternative family arrangements shall be equally
treated by the law. Measures shall be taken to break barriers to
their rights.
V. Activities of Law Making
 Taiwan Alliance to Promote Civil Partnership Rights
proposed amendments to :
1.neutralize the terms of existing laws, e.g. to change the
term “husband” or “wife” to “spouse”; may have difficulty
finding a neutralized word of “a parent”
→ so as to include same-sex marriages, with the help of
judicial interpretation
2. add one chapter of civil partnership to Taiwan Civil Code
→ so as to create a different style of partnership from marriage
3. add an anti-discrimination clause to the section of
→ to prevent future “Taoyuan case.”
VI. Conclusion
In the viewpoint of law and society The most efficient way to bring about change in Taiwan is
through legislation
 the neutralized written law does not guarantee an unprejudiced
way of interpreting and enforcing the law
 Difficulty of legal reform: to confront deeply entrenched cultural
and social norms relating to family
 the change of legal structure → broader social change
New developments of the law may loosen and finally change the
long standing ideas of heterosexual nuclear family.
 Lastly, as rewriting the law is only the beginning of change, the
process of reform must go beyond the legal system, because it is
our hope to establish an open minded and tolerant society.
Thank you for listening