Artificial Reproduction Act’s Restriction on Same-Sex Couples: Gender Issues, Welfare of the Child, and Practices

• Main Authors: Chen, Chi, 陳其
• Other Authors: Lin, Yun-hsien
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/87627713283406559822

碩士 === 國立清華大學 === 科技法律研究所 === 104 === The appearance of artificial reproductive technologies(ART) enables human beings to overcome the biological barriers to procreation. Technologies, however, does not exist without social contexts. Namely, the regulation on technologies reflects people’s worries, and the regulation will in turn affect the society. Taiwan Artificial Reproduction Act, passed in 2007, is one of the examples. It not only excludes surrogate arrangements but also allows only married couples under certain conditions the access to ART. In this thesis, I am going to combine a few methodologies, including legal dogmatic, sociology of law and empirical studies, to analyze how the restrictions on recipients under Taiwan Artificial Reproduction Act will affect same-sex couples, while focus on legal and gender issues. In chapter 2, I will first portray the artificial reproductive practices through interpreting Civil Code and Artificial Reproduction Act. With delicate categorization, I will point out different levels of ethical and technical challenges if recipients have access to artificial reproduction. Besides, the latest development of law making, three Civil Code drafts made by Taiwan Alliance to Promote Civil Partnership Rights, is also worth noticing. Focusing on artificial reproduction, we will find there are still some restrictions remained, especially when surrogacy is involved. To repeal such restrictions, it is necessary to discuss the reasons why the restrictions were originally formed and the involved gender issues. By analyzing the legislative process record in chapter 3, I will explain that the welfare of the child was standing in the center of the dispute. The legislators, however, were tainted by gender discrimination while considering children's welfare. Based on this discrimination, only heterosexual married couple are deemed worthy parents. I will criticize this legislative reasoning through three perspectives. One is that the judgment of the best interests of the child made by legislators was ill-founded. Second, there was no existing empirical study that could justify the legislators’ bias. Finally, these restrictions made by such gender discrimination might violate the right to a family, according to international conventions such as CEDAW, ICCPR, and ICESCR. Considering the best interests of the child being the main issue here, how to respond to it will be the vital issue. I recognize that different kinds of families have their own different challenges, particularly when LGBT families fight for access to artificial reproduction in the current legal system and social context. However, we shall improve the legal framework in the direction of protecting children’s welfare, instead of a total prohibition on people other than married heterosexual couples. In chapter 4, using empirical data gathered from in-depth interviews, I will narrate and analyze gay and lesbian couples’ artificial reproductive experiences, and hereby give some advice for establishing a friendly, better ART environment in Taiwan.