Recognizing and Removing Human Rights Barriers

Moot Courts, Real Stories

Both the Moot Constitutional Court and the actual Constitutional Court deal with human rights cases; however, compared to a real court, a moot court has a greater opportunity to touch the dark corners of human rights. Through Taiwan's first moot constitutional court event, we finally had the opportunity to directly and indirectly contact some civil society groups, and received their direct or indirect assistance. With the successful completion of the entire moot constitutional court event, two judgments were produced. I would like to take this opportunity to express my sincere gratitude for the support and encouragement from all sectors of society.

Following the delivery of the judgment on the constitutional interpretation case regarding same-sex marriage and same-sex partner child adoption, the Taiwan Tongzhi Family Rights Advocacy Association (TTFRAA) sent a message sharing the following story: A same-sex female couple, A and B, underwent artificial insemination in Canada. Using B's egg and a donor's sperm, B became pregnant and gave birth to two children, who are now three years old. Although A has no biological relation to the children, she accompanied B throughout the artificial insemination process, served as the family's primary financial pillar, and co-reared the children, registering in Canada as "dual parents." However, upon returning to Taiwan, this Canadian status registration was not recognized by our household registration authorities. A once sought to become the children's legal parent through adoption, but was rejected by the Department of Social Welfare, Taipei City Government, on the grounds of legal constraints.

This story had already been read and heard in the petition for constitutional interpretation and the oral argument sessions of the Moot Constitutional Court; yet, the pain of the parties being unable to complete the adoption procedure was not vividly felt at the time. Through TTFRAA's explanation, it was finally understood. It is the anxiety and insecurity felt by any family facing similar dilemmas, and such dilemmas can arise in any family.

This same-sex family, which has lived together for 15 years, cannot possess the legal status of father and mother. As the primary financial pillar and substantive parent of the family, it is inevitable to feel that despite living together stably for so long, one cannot secure legal protection for the relationship between oneself and the other person's children. There is always the distinction and anxiety of "not being able to own your child." This anxiety inevitably erodes trust among family members. As a family caregiver, especially a responsible one, one naturally hopes to formalize each other's relationship so that the children can grow up in a trusting and secure family. This should be the original intention of bringing up children in the first place.

Regarding this story, just as promised in the July 30 press release of the Moot Constitutional Court, I am glad to express a few personal views.

Viscerally Felt Discrimination

This story reminds me of a question and a scene that emerged during the court proceedings. Is it because the law has restrictive provisions, or because the administrative competent authority improperly applied the regulations? Discussions surrounding this question naturally arose at the very beginning, and during the final deliberation stage regarding adoption restrictions, such arguments emerged: current civil law does not prohibit single-person adoption, and some moot grand justices even cited personal experience to explain that single-person adoption is indeed practiced.

Yet I happen to have a related, different experience. However, before the Grand Justices, being responsible for the work of the Secretariat, I could of course only leave my words unsaid. Here is that unspoken story.

Before my mother suffered from dementia, my unmarried status and lack of children were the main sources of her anxiety. Therefore, these two topics were frequently the opening remarks, interludes, and conclusions of my mother's conversations with me. As time went on, my mother realized that adopting children was a more pragmatic life plan, and thus she almost took independent action several times. Even at the end of the first year she was diagnosed with dementia, she remained extremely determined that I go with her to the countryside to find a child to adopt.

Although I would completely forget these recurring key conversations of my mother's the moment I turned around, there were also moments of immense pressure. That was in 2001, which happened to be my sabbatical year. What my mother constantly had on her lips was going to an orphanage to adopt a child for me. One day, I had no choice but to try browsing the internet for related information, and I found the phone number of the Taipei City Department of Social Welfare. When the call went through, I inquired about the procedure for adopting a child. Upon hearing that I was unmarried, the other person immediately stated that unmarried people cannot adopt children. I was certainly startled, but the person who answered me spoke as a matter of course, telling me that the rules were simply like that. Thus, that phone call was very brief.

Understandably, I used this official response to fend off my mother's ideas for quite a while, because apart from always cutting in line, my mother basically believed whatever the government said.

At the same time, of course, I felt it was simply too bullying! Those families who might have a risk of domestic violence or hidden risks to the growth of the next generation, simply because they are in a married state, can at least pass the first round of qualification review and fill out an application form. The staff at the other end of the phone would even spend several more minutes talking with them, instructing them on how to proceed with various child adoption procedures. Yet an educator, qualified to educate other people's children, is viewed as harmful to raising the next generation of their own—adopt a child? Don't even think about it!

How clear this depreciation of an unmarried individual's personal value is! Therefore, if someone is not voluntarily unmarried, but rather because the state system prohibits them from concluding a marriage, and they perceive their personality as insulted, their dignity damaged, and themselves as inferior to other citizens, isn't that extremely easy to understand?

The Civil Code does not state that unmarried people cannot adopt children, but administrative competent authorities can obviously make the adoption mechanism operate as a system potentially filled with various discriminations through preconceived notions of adoption criteria conditions.

The Right to Form a Family Should Rightfully Be Included in the Enumerated List of Human Rights

The value of each individual can only be manifested through interaction with other individuals. The family is the beginning of an individual's socialization. Every individual's connection with others—establishing human value, shaping personality, and developing life—begins with entering a family. Regardless of the type of family, without a family, an individual's life value cannot truly be developed. This is why the right to form a family cannot possibly fail to be a fundamental right protected by the Constitution.

That our Constitution fails to explicitly place the right to form a family in the enumerated list of human rights is a constitutional flaw that is hard to imagine. (Incorporating the family right into the freedom of association is also one way to eliminate this flaw. Refer to the Opinion of Grand Justice Li Nien-chu in the Moot Constitutional Court Judgment 2.) Therefore, the Grand Justices of the Judicial Yuan invoking Article 22 of the Constitution to protect the right to form a family is not an inferior form of protection (regarding how to apply Article 22 of the Constitution, refer to Section I, Item 1, Paragraph (2) of my opinion in Judicial Yuan Interpretation No. 689).

The way one enters a family may be the natural fact of procreation, or it may be through the adoption process. Whether through natural procreation or through the adoption process, the individual born or adopted is simultaneously a subject constituting the family. In a family that wishes to bear and raise children, after having children, enabling the children to grow smoothly (should) become the family's most important task. Therefore, protecting families with children must naturally start from the best interests of the child. Thus, those who specifically believe that being unmarried or a single parent is detrimental to a child's growth should obviously offer even greater support to the desire to contract marriage and provide children with a two-parent family.

The Mission of Public Authority: Not Creating Human Rights Barriers, but Actively Removing Human Rights Barriers

People who have the opportunity to serve in public office and exercise public authority have mostly gone through the high competition of national examinations. Putting aside the discriminative capability of the examination system, people who have passed national examinations inevitably possess a certain degree of sensitivity in their understanding of and response to various legal norms. But where should this sensitivity be placed?

All legal norms are intended to describe the human rights space anticipated by the people. Whether it is those holding legislative power, executive power, or judicial power, the sensitivity they are expected to exhibit should lie in perceiving human rights barriers within norms.

The purpose of establishing a government is to solve problems for the people. When public authority faces people seeking help, shouldn't it strive not to simply throw up its hands? A public authority with the sincerity to solve problems might as well seriously consider the solutions proposed by the Moot Constitutional Court or the parties involved!