LGBTQ RIGHTS/Despite same-sex marriage law, parental rights still lacking

06/04/2022 01:57 PM
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CNA file photo
CNA file photo

[Editor's Note: This is Part 2 of a three-part series that takes an in-depth look at the challenges still facing same-sex couples and LGBTQ individuals in Taiwan, three years after the country became the first in Asia to legalize same-sex marriage. Since 2019, more than 7,900 same-sex couples have registered their marriages in Taiwan, but many cross-national couples are still unable to do so. All same-sex couples are also barred in Taiwan from adopting children together. This series examines those issues. Read Part 1 and Part 3.]

By Chiang Yi-ching, CNA staff reporter

"Finally, this moment has arrived," Chen Jun-ju (陳俊儒) sighed in relief, speaking to reporters crowded into the Household Registration Office in Taipei's Xinyi District on Jan. 13.

"I'm looking forward to seeing my name on my child's ID. I'm so happy we have made it to this point. It has been a difficult road to get here."

The years-long legal effort by Chen and his partner Wang Chen-wei (王振圍) to adopt a daughter together had come to an end. Their case was the first in Taiwan in which both partners in a same-sex marriage were legally allowed to adopt a child to which neither was biologically related.

Yet the victory was bittersweet because it did not change a basic reality: same-sex marriage may have been legalized in Taiwan in May 2019, but same-sex couples are still barred from adopting children together in Taiwan and are also prohibited from using assisted reproductive technology.

Flaws in the system

At the heart of the problem is the same-sex marriage law, known as the Act for Implementation of Judicial Yuan Interpretation No. 748, passed on May 24, 2019. Its only reference to adoption is that a partner in a same-sex union can "adopt the genetic child of the other party."

Left unsaid is what happens if a same-sex couple wants to adopt a child not genetically related to either partner, or if one partner wants to adopt a child the other partner adopted prior to getting married.

Neither of those alternatives are problematic for opposite-sex couples, but they are still not possible for same-sex couples in practice, with Chen and Wang the one exception so far.

Chen Jun-ju (left) and Wang Chen-wei show their daughter’s ID, which now lists them both as fathers. CNA file photo
Chen Jun-ju (left) and Wang Chen-wei show their daughter’s ID, which now lists them both as fathers. CNA file photo

Reese Li (黎璿萍), secretary-general of the rights group Taiwan LGBTQ Family Rights Advocacy, said the issue is growing in importance, as her organization has seen a rise in same-sex couples looking to start a family in Taiwan.

In 2021, the group advised 1,200 such individuals, compared to the 3,000 they advised in the previous five years.

Wang and Chen, who have been together 17 years, began their adoption process in May 2017, Chen told CNA in a recent interview.

They were eventually approved for adoption in December 2018, and a month later, were matched with their daughter, nicknamed Joujou (肉肉).

In Taiwan, any individual can adopt a child after going through the adoption process, and the couple's application was in Wang's name, but Chen and Wang had hoped Taiwan's pending same-sex marriage law would enable them to adopt Joujou as a married couple.

Their hopes were dashed, however, when the bill placed a condition on adoption -- that the child be biologically related to either partner in the marriage -- which is why when it passed, "we couldn't bring ourselves to be happy," Chen said.

Chen and Wang had originally planned on getting married in August 2019, but their adoption agency said doing so would jeopardize their application to adopt Joujou, Chen said.

The couple eventually did get married after Wang officially adopted Joujou, but the move weighed heavily on Chen.

Clear discrimination

In practical terms, he could not sign documents related to Joujou, and was forced to drop his pursuit of a master's degree when he could not get a parental extension to write his thesis.

But the emotional burden took an even greater toll than the practical issues.

"I felt like I was somehow lesser than other people. I was her father, but I had no way to prove that I was her father," he said, describing the situation as "clear discrimination."

With the help of LGBTQ rights groups, Chen and Wang, along with two other families in the same situation, went to court to gain full parental rights in April 2021. Only Chen and Wang's case was approved.

The judicial affairs officer presiding over their case reasoned that the same-sex marriage law did not prohibit the adoption of non-biological children, and that allowing Chen to also adopt Joujou was in the best interests of the child.

In the other cases, however, judicial officers were unwilling to give a similar go-ahead without explicit guidance from the law.

Chen Jun-ju (in grey) and his partner Wang Chen-wei (in white) bring their daughter Joujou to the Household Registration Office in Taipei’s Xinyi District to finalize Chen
Chen Jun-ju (in grey) and his partner Wang Chen-wei (in white) bring their daughter Joujou to the Household Registration Office in Taipei’s Xinyi District to finalize Chen's adoption of her on Jan. 13, 2022. CNA file photo

Now that he is legally recognized as Joujou's father, Chen said he has "blossomed" and is "completely happy."

Wang, active in social justice issues since his student days, has more mixed feelings. When asked how it felt to be the first same-sex couple in Asia to adopt a child together, Wang said he did not want to be the first because it was a right everyone should have rather than just them, Chen recalled.

The couple have now begun the process to adopt a second child, but it is unclear whether they will be forced to get divorced for the adoption to go through, according to Chen.

Despite the uncertainty, they have no plans to wait until Taiwan's laws are changed. "We're getting old," he joked.

Limited options

Chu Chia-jong (朱家瑢), director of Taiwan LGBTQ Family Rights Advocacy, began the process of adopting a child with her partner of 13 years in early 2021, she told CNA.

Chu said they initially considered conceiving children via assisted reproductive technologies abroad, as Taiwan's Assisted Reproduction Act limits the use of such technologies to opposite-sex married couples.

The COVID-19 pandemic complicated overseas travel, however, so she and her partner opted for adoption instead, knowing they would face unfair legal barriers.

The adoption is being filed in Chu's name, meaning that her partner, who has been involved in every step of the process, will have no legal rights as a parent, Chu lamented.

"In the future, will we also have to go through [a lawsuit] to obtain full parental rights? For something our family and our child are supposed to have?" she wondered.

Call for change

According to Li, the solution is simple: just strike the word "genetic" from the adoption clause in the same-sex marriage law so that a partner in a same-sex union can adopt the other's child.

Failure to do so would leave adopted children vulnerable because if the parent with legal adoption rights passes away, the other parent would not automatically become the child's guardian, she said.

Reese Li (standing) speaks at a press briefing announcing the launch of three lawsuits for full parental rights filed by same-sex couples with adopted children. Photo courtesy of Taiwan LGBTQ Family Rights Advocacy
Reese Li (standing) speaks at a press briefing announcing the launch of three lawsuits for full parental rights filed by same-sex couples with adopted children. Photo courtesy of Taiwan LGBTQ Family Rights Advocacy

Amending the adoption clause would also give more children put up for adoption a chance to find suitable families, she said, as around 600 children are put up for adoption each year, but only 200 or so are successfully matched with adoptive parents, according to government data.

Though legislators have proposed amendments to the law, they are waiting for the Ministry of Justice to finish a legal evaluation of the subject before discussing the proposals, she said.

Going abroad to conceive children via assisted reproductive technologies is an alternative, but it can get very expensive, according to Li.

Same-sex female couples pay around NT$600,000 to NT$1 million for one trip, while for male couples, who need to rely on a surrogate, the cost can be as high as NT$4 million to NT$6 million, she said.

The Ministry of Health and Welfare (MOHW) began drafting changes to the Assisted Reproduction Act two years ago that would allow same-sex female couples to conceive children.

After a draft surrogacy bill was sent to the Legislature in May 2020, however, the MOHW is now considering the two issues together, and it seems unlikely it will craft a draft bill this year, due to the issue's complexity and lack of public consensus, Li said.

Whether same-sex couples adopt or use assisted reproductive technologies, acceptance of same-sex couples as parents has grown in recent years in Taiwan.

A government survey conducted in early May found that 71 percent of respondents agreed that same-sex couples should have the right to adopt children, while 71.8 percent thought that same-sex couples can be good parents.

Chu said she has seen this firsthand.

People sometimes make assumptions when they do not know a lot about a subject, but after face-to-face interactions and listening to the stories of same-sex parents, people realize they are not that different from opposite-sex parents, Chu said.

"At the end of the day, we all want these children to grow up happily and healthily, no matter their background," she said.

Enditem/ls

Part 1: Same-sex cross-national couples continue fight for marriage equality

Part 3: Transgender people hope for change in ID regulations after landmark court rulings

A family-themed event is held in front of Taipei City Hall along with the Taiwan LGBT Pride parade in October, 2019. CNA file photo
A family-themed event is held in front of Taipei City Hall along with the Taiwan LGBT Pride parade in October, 2019. CNA file photo
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