Based on the notion of human dignity, an individual’s autonomy and the free development of his/her personality shall be safeguarded by the Constitution (see Judicial Yuan Interpretation No. 689). Marriage and family serve as the foundation by which society develops and shapes itself, and are thus institutionally protected by the Constitution (see Judicial Yuan Interpretations Nos. 362, 552, 554, and 696). The family system is based on the free development of personality and is essential for ensuring the functions of inheritance, education, the economy and culture. It is vital for an individual’s growth in society and is the foundation of the creation and development of our society. Adoption is part of our country’s family system. It is an action that establishes a parent-child relationship with a view to creating an identity. In this way it forms human relationships between the adopter and adopted of education, nurturing, support, belonging and inheritance of property. It plays an important role in developing the mind and body and molding the personality of both adopter and adopted. The people’s freedom to adopt children, in particular the freedom of development of personality for both adopter and adopted, is protected under Article 22 of the Constitution.
The Additional Articles of the Constitution clearly state “… responding to necessity before national reunification, according to Article 27 Paragraph 1, Subparagraph 3, and Article 174, Paragraph 1, enacted the Additional Articles of the Constitution, Article 11 of which provides that "For managing affairs and the relations of rights and obligations between people living in the free area and the mainland area, relevant laws may be specifically enacted." Consequently, Article 65 Paragraph 1 of the Act Governing the Relations Between People of the Taiwan Area and the Mainland Area serve as a specially enacted law to protect the rights and obligations between the people from the two areas (see Judicial Yuan Interpretations Nos. 618, and 710). Article 65 Paragraph 1 of the Act Governing the Relations Between People of the Taiwan Area and the Mainland Area states: “The court shall not approve People of the Taiwan Area adopting children of the Mainland Area under any one of the following circumstances: 1. where any one of the adoptive parents already has a child or adopted child. ” Under the current state of separate governing bodies in the two areas, this Act prohibits parents of the Taiwan area with a child or adopted child from adopting a child from the Mainland Area. The current Act prohibits the court from approving such an adoption and is a violation of the right to adopt for the people of the Taiwan Area.
Dealing with cross-strait affairs requires consideration of and judgment regarding numerous economic, political, and social factors. The constitutional interpreters should rightfully give due respect to the decisions made by the legislative branch, which represents the diverse opinions of the people, and have ample information on hand in that regard unless there has been any noticeable or significant oversight on the part of the legislative branch (see Judicial Yuan Interpretation No. 618). However, restrictions placed on the people of the Taiwan area adopting people of the Mainland area should not violate Article 23 of the Constitution.
Legislators took into consideration the close cultural and ancestral ties between people of Taiwan and the Mainland area before legislating against the adoption of people from the Mainland Area. Should the people of the Taiwan Area be free to adopt people of the Mainland Area without limitation, a large displacement of population from the Mainland Area to the Taiwan Area may occur, threatening the stability and safety of society (see Legislative Yuan Gazette, vol. 81, no. 51 p. 152). Thus in the interests of the welfare and well-being of the general public, the Act prohibits the adoption of people of the Mainland Area by persons who already have a child or adopted child. This prevents a population displacement from the Mainland Area to the Taiwan Area, and meets the original intent of the legislation.
However, for people of the Taiwan Area to adopt children of a spouse from the Mainland Area is conducive to encouraging marital happiness, family harmony. It also fosters the adopted children’s physical and mental well-being and helps develop their personality. The provision in dispute does not address such areas, and is a de facto contradiction of the Constitution’s principle to protect the marriage and family of the people as well as their human dignity and freedom to develop their personality. From this perspective, the constraint placed on the adoption of people of Mainland Area is an overregulation and opposes the intent to protect the general welfare of the public. This section of the clause pertaining to the restriction of people of the Taiwan area adopting children of a spouse of the Mainland Area violates the principle of proportionality of Article 23 of the Constitution and the freedom to adopt of Article 22 of the Constitution and shall be held invalid on the date of issuance of this Interpretation.
To lessen the court’s intervention in the people’s freedom to adopt, relevant agencies should consider the political, economic, and social implications when processing requests for adoption from the people of the Taiwan Area who wish to adopt people of the Mainland Area. Relevant regulations should also be examined and updated in a timely way.
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＊ Translated by Lawrence L LEE