Taiwan achieved a first in Asia by legalising non-heterosexual marriage in 2019, pursuant to a constitutional court ruling that the definition of marriage, which was restricted to heterosexual unions, violated Taiwan’s Constitution. On Tuesday, it took one more step towards full realisation of marriage equality rights by allowing non-heterosexual parents to jointly adopt a child. The amendment allowing joint adoption was hailed to be in the best interest of the child.
ON May 16, Taiwan became the first Asian country to grantjoint adoption rights to non-heterosexual couples on the eve of the fourth anniversary of adoption of Taiwan’s marriage equality law.
Four years ago, on the same date, Taiwan’s Parliament had passed a Bill recognising the right of non-heterosexual couples’ to marry. The Bill came into force on May 24, 2019, close on the heels ofdecriminalisationof homosexuality in India in 2018.
In a 2017 ruling,Taiwan’s constitutional court had observed that the prohibition of non-heterosexual marriage in the existing civil code of the country was unconstitutional. The court had given the legislature two years from the issuance of the constitutional interpretation to amend existing laws or enact relevant laws in accordance with the ruling. Subsequently, Taiwan’s Parliament passed the Act for the enforcement of theEnforcement Act of Judicial Yuan Interpretation No.748 on May 16, 2019.
Last year, a male couple had challenged the ban on adoption by non-heterosexual couples. The local juvenile and family courtruledto allow non-heterosexual couples to adopt a child, observing that a child should not be discriminated against because of their parents’ sexual orientation. The court stated that existing laws did not expressly prohibit adoption by non-heterosexual parents. The ruling also said that adoption was in the best interest of the child.
A new law and a new beginning?
The new law is another big step in the direction of full realisation of equal marriage rights in Taiwan.
Draped in a rainbow flag, lawmaker Fan Yun of the Democratic Progressive Party introduced the amendment allowing joint adoption by non-heterosexual couples in the Parliament.
Before the amendment,individuals were allowed to adopt irrespective of their sexual orientation but non-heterosexual couples could not be legal parents unless the child was a biological offspring of one of them.
Fan Yun said that the amendment not only ensured the protection of children’s rights but also met their best interest.
The Bill received cross-party support and the move was hailed by the prominent LGBTQIA++ rights group Taiwan Alliance to Promote Civil Partnership Rights. The Taiwan Alliance issued astatementsaying, “After four years of hard work, today the Parliament finally passed the [Bill for] adoption without blood relationship by same-sex couples.”
On January 23,transnational non-heterosexual marriage was also legalised through a government directive. Earlier, Taiwan did not recognise transnational marriages if a Taiwanese citizen was married to a foreign national hailing from a country where non-heterosexual marriage was banned. However, the legalisation of foreign non-heterosexual marriage does not allow marriage in mainland China.
How do other countries on Asia fare on marriage equality?
This new law on adoption in Taiwan comes at a time when other countries in Asia are struggling to achieve marriage equality.
TheSupreme Court of India recently completed the hearings on a batch of petitions on the recognition of marriage equality.
TheSupreme Court of Nepal has also pronounced a progressive judgment recognising the marriage rights of gender and sexual minorities and directed the government to implement appropriate legislation on the issue.
On May 10, theSupreme Court of Sri Lankadismissed petitions challenging the constitutionality of the Penal Code (Amendment) Bill, 2023. The amendment Bill intends to repeal Sections 365 (unnatural offence) and 365A (acts of gross indecency between persons) of the Penal Code, 1883 (as amended in 1995), criminalising intimate acts between consenting adults, for being unconstitutional.
The court stated that the Bill, which intends to repeal laws that make the right to sexual orientation a criminal offence, would ensure equality before law irrespective of sexual orientation. In fact, in the words of the court, the Bill would enhance the “fundamental rights guaranteed to them [gender and sexual minorities] under the Constitution and enable them to live in [the] society with dignity.”