1. Yun-hsien Diana Lin, Associate Professor Institute of Law for Science and Technology National Tsing Hua University, Taiwan yunslin@hotmail.com Lesbian Parenting in Taiwan: the Emerging Legal Challenges 1

2. 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 possibility. Same-sex marriage not legally recognized in Taiwan: Marriage is defined as “a legal and permanent union of a man and a woman” 2

3. 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 3

4. 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 4

5. 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. 5

6. 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 1075) 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. 6

7. 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 disposition 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. 7

8. 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 8

9. 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 9

10. 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). 10

11. 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 11

12. 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. 12

13. 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 adoption → to prevent future “Taoyuan case.” 13

14. 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. 14

15. Thank you for listening 15