EXPLAINER: Taiwan and its Struggle Towards Progress

By Genevieve Candace Poquiz

Asian countries have always been the most conservative of many things, stemming from traditional practices that are mostly still observed today. 


However, what separates Taiwan from other countries in Asia is that it has made far more significant progress, especially with LGBTQ rights, to the point of being known as the most LGBT-friendly country in Asia. The SPARTACUS Gay Travel Index 2021 even recognized it as the world’s 10th most LGBT-friendly travel destination.

So then, what bars Taiwan from truly being progressive? ADOPTION.

Chinese Tradition and Confucianism

Right after severing itself from the rule of Japan by the end of World War II, Taiwan became part of the Republic of China on October 25, 1945. A civil war in Mainland China against the Chinese Communist Party then led the government of the Republic of China along with 1.2 million Chinese people to be relocated to Taiwan in 1949.

Although Taiwan is now an independent country under the rule of the Republic of China, years of being colonized by China and Japan and the influence brought by over one million Chinese people led the country to adopt their traditions.

Furthermore, while Taiwanese religions vastly differ in number, with their people even tending to adhere to more than one faith, most residents of Taiwan practice Confucianism. Although it is not a religion, it is an ethical system that has largely influenced the way of living of the Chinese and was brought by religious leaders from China to Taiwan when they relocated in 1949.

Confucianism and Chinese tradition mostly center on filial piety — honoring one's parents and ancestors — respect for authority, and following the norms of society. In historical times, mainly from the 1950s to 1960s, same-sex relations were acceptable and did not violate the Confucian rule as long as they would practice filial piety by doing their obligations to marry and continue the family line.

The Law and its Loopholes

Taiwan’s Constitutional Court pointed out in 2017 that it is a violation of the constitution and the rights of the people for marriage between the same sex not to be legalized. This allowed for the Same-Sex Marriage Law or the Act for Implementation of J.Y. Interpretation No. 748 to be passed on May 24, 2019, which gave legal recognition to people in same-sex relationships to become each other’s spouses.

Huge differences between heterosexual marriage and a same-sex partnership, however, are present. As a country that recognizes marriage as a union between a couple and their families, the Same-Sex Marriage Law only acknowledges the union of the two parties and not between their families, in contrast to the Civil Code. Though legal recognition of same-sex partnership gives them the benefits and family policies present for married couples, there remain flaws within the law.

First of all, transnational couples can only marry if the country of the foreign person recognizes same-sex marriage. Second, artificial reproduction technology rights are not inclusive of same-sex couples. And third, the law only specifies that a married same-sex couple may adopt a blood-related child. It does not explicitly state cases in which a child is adopted by an individual before marriage or if a married couple wishes to adopt. 

Although single people of all sexual orientations can adopt a child even non-blood-related to them, the fact that their spouse cannot be legally recognized as the other parent of the child bars them from other benefits that would otherwise be present should the law recognize them as the legal parent of the child. The spouse will also lose all rights over the child should the legally recognized parent pass away, leaving the child to be brought under the care of the parent's family.

When the Law is Left to Interpretation

As with all laws present that are rid of holes, there is no other choice but to leave everything to interpretation. Such is the case with Wang Chen-wei and Chen Jun-ru, the first of all same-sex couples in Taiwan to adopt a non-blood-related child legally. Kaohsiung Juvenile and Family Court ruled that it is in the child’s best interest to have them as her legal parents, stating that while the law only specified the adoption of blood-related children among same-sex couples, it also did not note that it is not allowed for same-sex couples to adopt a non-blood-related child, stating that it would be “inappropriate to give a negative or discriminatory interpretation of the provision.”

While this seems to be a success and a beacon of hope to other same-sex couples, that is just it. In the end, the law remained the same, and other couples who fought in court for adoption were not granted the same. And should Wang and Chen choose to adopt a second child, they would have to fight a long and rigorous judicial process once again. 

On the other hand, if revisions were to be made and same-sex couples were allowed to adopt, this would not only serve equal rights to the LGBTQ community but also benefit the hundreds of children waiting for adoption each year.

The Next Step

In the end, the people still have greater sway over the advancement of their nation. The main reason why Taiwan has progressed so much is because of activism. While the opposition would argue that a child growing up in a homosexual family would bring about complications and socio-emotional development problems, studies in the USA and the Netherlands have proven that there is no difference between the behavioral and emotional outcomes of children from a heterosexual and same-sex couple. Though these studies stem from countries where the LGBTQ community is largely accepted, challenges remain for same-sex couples, especially their direct relatives.

It cannot also be ignored how Taiwan has been very accepting of the LGBTQ community and are even supportive of their rights, as is evident with the survey results conducted by the Taiwan Equality Campaign 2022 poll, showing a 73% acceptance of the community and 67.4% in support of adoption of a non-blood-relative by a same-sex couple.


REFERENCES:
Act for Implementation of JY Interpretation No 748. (2019, May 22). Judicial Yuan Law and Regulations Retrieving System. https://law.judicial.gov.tw/LAWENG/FLAW/dat02.aspx?lsid=FL091164

Cheung, E. (2022, July 2). Taiwan accepts same-sex marriage, so why not adoption? CNN. https://edition.cnn.com/2022/07/01/asia/taiwan-lgbtq-adoption-gay-marriage-intl-hnk/index.html

Chung, W. (2021). Same‐sex partnership in the family policies of Japan, Singapore, and Taiwan. International Journal of Social Welfare, 30(4), 465–477. https://doi.org/10.1111/ijsw.12489

Confucianism | Meaning, History, Beliefs, & Facts. (n.d.). Encyclopedia Britannica. https://www.britannica.com/topic/Confucianism

Court allows same-sex partner to adopt child. (2022, January 6). Taipei Times. https://www.taipeitimes.com/News/taiwan/archives/2022/01/06/2003770838

Farr, R. H., & Vasquez, C. P. (2020, March 30). Stigma Experiences, Mental Health, Perceived Parenting Competence, and Parent–Child Relationships Among Lesbian, Gay, and Heterosexual Adoptive Parents in the United States. Frontiers. https://www.frontiersin.org/articles/10.3389/fpsyg.2020.00445/full

Mazrekaj, D., Fischer, M. M., & Bos, H. M. W. (2022). Behavioral Outcomes of Children with Same-Sex Parents in The Netherlands. International Journal of Environmental Research and Public Health, 19(10), 5922. https://doi.org/10.3390/ijerph19105922

Ministry of Foreign Affairs, Republic of China (Taiwan). (n.d.). History. Government Portal of the Republic of China (Taiwan). https://www.taiwan.gov.tw/content_3.php#:%7E:text=Dutch%20and%20Spanish%20settlers%20established,late%201940s%20and%20early%201950s.

No.748 【Same-Sex Marriage Case】. (2017, May 24). Constitutional Court R.O.C (Taiwan). https://cons.judicial.gov.tw/en/docdata.aspx?fid=100&id=310929

Press Conference of Taiwan Equality Campaign Social Attitude Survey. (2022, May 17). Taiwan Equality Campaign. https://equallove.tw/news/1812

Spartacus. (2021, August 31). SPARTACUS Gay Travel Index 2021. Spartacus Blog. https://spartacus.gayguide.travel/blog/spartacus-gay-travel-index-2021/

Stewart, L. (2022, May 4). Activists fight for LGBTQ adoption rights in Taiwan. SupChina. https://supchina.com/2022/05/04/activists-fight-for-lgbtq-adoption-rights-in-taiwan/

Taiwan - Languages. (n.d.). Encyclopedia Britannica. https://www.britannica.com/place/Taiwan/Languages#ref30006

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Yang, C. (2022, February 22). Same-sex couples push for adoption rights in Taiwan after landmark case offers hope. ABC News. https://www.abc.net.au/news/2022-02-22/taiwanese-same-sex-couples-push-for-adoption-rights/100646874
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