Taiwan Alliance to Promote Civil Partnership Rights（TAPCPR） Date : 2019/02/21
Preliminary analysis of the draft bill released by the Executive Yuan finds that inheritance and property rights enshrined in the relevant provisions of Taiwan’s Civil Code will apply equally to individuals in same-sex marriages. In addition, unless otherwise provided in the draft bill, rights afforded by the (Part I) General Principles and (Part II) Obligations of Taiwan’s Civil Code, the provisions of other laws related to husband/wife, spouses and marriage , as well regulations pertaining to spousal relationships, generally apply to same-sex marriages, including the majority of rights and obligations related to spouses (such as medical rights, social welfare, tax advantages, and status in litigation, among others). TAPCPR would, however, like to highlight several areas that require further clarification or improvement.
1. The draft bill is designed such that same-sex marriage does not result in the creation of a relationship by marriage between the blood relatives of one spouse in a same-sex marriage and the other spouse (i.e., “in-law” relationships for same-sex couples are not legally created in this system). Accordingly, the draft bill does not properly apply provisions on the family and marriage from the Civil Code, and constitutes a material divergence with opposite-sex marriages. It is, therefore, unclear how scenarios under Taiwan’s legal system related to rules regarding conflict of interests within a relationship of relatives by marriage (i.e., legal exemption from testifying against relatives, etc) will be handled with same-sex couples. This will require further revision by and clarification from the Executive Yuan.
2. The draft bill permits a person in a same sex marriage to adopt the biological children of their spouse (Article 20), but does not permit the joint adoption of non-biological children. While this does recognize and meet the needs of many same-sex families with biological children, the restriction fails to guarantee the full rights of same-sex couples in matters of adoption.
3. Article 26 of the draft bill guarantees “freedom of religion;” however, this could adversely impact the application of anti-discriminatory laws. For example, can an educational or medical institution established by a religious group dismiss or refuse to hire a person in a same-sex marriage on the grounds of “freedom of religion” as recognized in Article 26? We ask that the Executive Yuan provide further clarification on this point.
4. Same-sex couples with a partner who is a foreign national eagerly await the opportunity to marry and form a family in Taiwan. However, where the laws of the foreign national’s home country do not permit same-sex marriage, Article 46 of Taiwan’s “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements” could be interpreted as prohibiting the marriage in Taiwan. Given that the draft bill does not include complimentary regulations that would avoid a potential restriction of rights, the TAPCPR asks that the Executive Yuan consider amending the Law or adopting appropriate regulations.
5. Finally, the draft bill fails to clarify whether Taiwan’s Assisted Reproduction Act applies to same-sex partners; this matter has been relegated to the Ministry of Health and Welfare for further research. The TAPCPR asks that the Ministry consider and adopt appropriate measures in a timely manner.