Adoption in Taiwan

Legal General Legal Matters
1

My wife (a Taiwanese) and I are looking into the possibility of adoption. I have lived in Taiwan for nearly a decade, have permanent residence, and will spend (at least) a significant portion of the rest of my life here. However, as a foreigner , I am and always will be enjoined from adopting in Taiwan. We have, therefore, exploring several alternative possibilities, including the use of overseas (stateside) adoption agencies. However, few of them work with adoptive couples outside the states.

The other possibility is for my wife alone to adopt a child. However, in that case the child would legally belong to her alone, be registered under her name, and be considered a Taiwanese citizen. I would not be the legal father and would therefore be unable to make any legal decisions with respect to any child we raise. This is the particularly grievous issue for me – to give my love and devotion to a child but, legally speaking, be always treated as a non-person with respect to that child.

The other problem would come later when (if) we decide to relocate to the states. I enquired of the AIT about the possibility of obtaining US citizenship for any child we adopt, and received the following reply:

[quote]The adopted child may meet the " child" definition under U.S. Immigration & Naturalization Act either if he/she is adopted while under the age of sixteen years in the legal custody of, and has resided with, the adopting parents for at least two years, or a child, under the age of sixteen at the time a petition is filed in his/her behalf to accord a classification as an immediate relative, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents, or for whom the sole or surviving parent is incapable of providing the proper card and has in writing irrevocably released the child for emigration and adoption, and he/she has been adopted abroad by a United States citizen and spouse jointly. In other words, If none of the above conditions is met, the relationship between you can’t be defined as parents and child under US immigration law, and your child will be unable to be qualified as beneficiary of any immigrant visa application under immediate relative category or family base preference filed in her behalf. Certainly, she would not be able to obtain an U.S. citizenship from you.

To our understanding, Taiwan Law authorities would accept an international adoption application only if Article 18 and 29 of the Taiwan civil law concerning foreign affairs is applied. However, we would like to remind you that we can only provide the general information relating to the legal requirements of Taiwan. Hence, you are advised to consult the foreign legal counsel about questions involving interpretation of Taiwan laws. [/quote]

Not being versed in lawyer-speak, the above is not entirely intelligible to me. However, I do note the “jointly” in the first paragraph. My understanding is that since, as mentioned, Taiwanese law will not allow us to adopt jointly, any child we adopt will be unable to obtain US citizenship through me.

I’m looking for information and advice about how to approach this situation.

Kaiwen, Chiayi

2

One more thing:

If any one has access to the Taiwan civil law, could he or she please post Articles 18 and 29. I’d like to know what they are.

Kaiwen, Chiayi

3

I’m home sick today. I should be in the office tomorrow. PM me tomorrow… I’ll post the English translation of the Articles here.

In the meantime, you might want to look at this if you haven’t already:

travel.state.gov/adoption_taiwan.html

4

[quote=“KaiwenLee”]If any one has access to the Taiwan civil law, could he or she please post Articles 18 and 29. I’d like to know what they are.
[/quote]

Everything is available in the Ministry of Justice’s legal database . . . . . . in Chinese of course. See law.moj.gov.tw

5

[quote=“KaiwenLee”]However, as a foreigner , I am and always will be enjoined from adopting in Taiwan…

The other possibility is for my wife alone to adopt a child. However, in that case the child would legally belong to her alone, be registered under her name, and be considered a Taiwanese citizen. I would not be the legal father and would therefore be unable to make any legal decisions with respect to any child we raise. [/quote]
I came across the following, which may be of interest: [quote]Article 1074
Where a married person is to adopt a child, he or she shall do so jointly with his or her spouse except he or she adopts the other party’s child.[/quote]
So if your wife adopted a child, wouldn’t you have to be permitted to adopt that child as well? After all, the law does recognize your marriage. But I’m not a lawyer, so what do I know.

The same law (CIVIL CODE PART IV: FAMILY) has more on adoption.

6

[quote=“ROC Law Governing The Application Of Laws To Civil Matters Involving Foreign Elements”]

ARTICLE 18 With respect to the establishment and termination of adoption, the law of the respective country of the person effecting the adoption and the one who is adopted shall apply.

The effect of adoption is decided by the law of the country of the person effecting such adoption.

ARTICLE 19 The legal relation between parents and children is decided by the law of the country of the father. If a child has no father, or its father is a “Chiu-fu” the legal relation shall be decided by the law of the country of its mother; provided, that when a father has lost his nationality of the Republic of China, the legal relation shall be decided by the law of the Republic of China.[/quote]

Article 18 simply states that for an adoption to have legal effect, the relevant adoption laws of both the adopting party’s country and the adoptee’s country must be satisfied.

I’m not certain from where you get this idea. Our firm has handled adoptions for foreign nationals in Taiwan. One of my colleagues, a Taiwan attorney, informed me this morning that he recently handled an adoption of a Taiwanese child by an UK national.

7

Nor am I. Since I don’t speak the language (legalese, that is, not Chinese), I’m dependent on what others tell me. Thanks much for the reference. I’ll hang on to it and see what response I get to it.

Thanks to everyone who’s replied.

Kaiwen Lee, Chiayi

The same law (CIVIL CODE PART IV: FAMILY) has more on adoption.[/quote]

8

I have two suggestions, both of which might be worthless as I’m not a lawyer.
1.) Go to the mainland to adopt a child. I imagine that you would not have to wait on a list for a long time. It may actually cost more because orphanages in the PRC are bascially funded by adoption fees paid by parents, but your joint adoption would be completely legal in the PRC. If you go this route, you will probably end up adopting a girl, but you would literally have the pick of the litter.

2.) As your adoption would be legal in the PRC, then I’m certain that it would be recognized in the States. You will have to go through a bunch of paperwork and bureaucracy to get your adopted kid in, but I think it can be wound up in a couple of weeks. I’ve known US citizens who’ve adopted PRC kids and it took two to four weeks to go get the kid and bring it back to the States. Once you take the kid to the States, I guess you will “register” the adoption and that you and your wife are the legal guardians of the child. I suppose that under US law, both you and your wife would be the legal guardians, which would enable you to apply for US nationality for the child. After you return to Taiwan, you may have trouble with ROC law. They may still say that they don’t recognize you as the child’s parent and that they’ll only consider your wife as the legal guardian. Or they may just recognize both of you as the parents if you provide PRC, and more importantly, US documentation of the adoption that shows both of you as parents. No matter what, though, the child should be able to get US nationality because the adoption would be recognized and “registered” in the US.

The drawback of going this route is that you and your wife would have to take a few weeks away from work to get it all done. Any of you lawyer types think this would work?

9

I’ve known quite a few people from the states who have adopted children in China. One woman was a divorcee and she still was able to adopt a girl in China. However, the process for her and the others was long and costly.

Last year a good friend of mine from college tried to adopt in China and their experience, while certanly not typical, was a nightmare. They spent over a year going through the procedures and then finally went to Guangzhou to get the child, an infant only months old. They were living in an hotel in Guangzhou and were given possession of the baby. They were to have possession of the baby for a short period while in China finalizing all of the procedures. To their horror, the baby was sick when they received her and she died several days later. They were, of course, devastated. The Chinese wanted to conduct an investigation and ascertain whether my friends were culpable for the Chinese child’s death. At the same time, the Chinese adoption agency was asking them if they wouldn’t want to “try to get another one” since they were already in China. My friends were in no state of mind to think of “getting a replacement” as they had regarded their year-long wait for the child, which they had already named, as their pregnancy and they were grieving the death of their child.

The Chinese authorities continued to press that they wanted to conduct an investigation as to the cause of the baby’s death, and apparently they were insinuating that my friends were likely at fault. Naturally, my friends were sick with fear and sadness. They called me and I offered to go to Guangzhou… they told me that my going there wasn’t necessary, but asked if I could call anyone in the US to assist.

I called a mutual college friend of ours who is the head of the Erie (Pennsylvania) County Republicans. Tom Ridge is from Erie and our buddy was Ridge’s right-hand man in Ridge’s campaign when he ran for and and was elected Pennsylvania Governor. Later of course, Bush appointed Ridge to head the Dep’t. of Homeland Security.

So, our buddy called Ridge, who called Colin Powell, who called the US embassy in Guangzhou which intervened on behalf of our friend there.

In the end, no investigation was conducted and the Chinese agreed that the baby had died of pnemonia which it had prior to our friend’s possession of the child. My friend and his wife were permitted to take the baby back to New Jersey where the baby was buried in a Catholic cemetery.

Again, this experience isn’t typical by a long shot… but I think if the adopting parents are foreign nationals and or Taiwanese nationals, I would attempt to adopt in Taiwan.

10

Tigerman, I can think of nothing that would crush the spirits of a couple more than what happened to your friends in GZ. I’ve felt a bit uncomfortable about some of the parents I’ve known who adopted mainland children. As you implied, the mainland adoption agencies don’t insist on very high standards. I also get a little uncomfortable with the missionary attitude of some couples that they are going to “save a child from China.”

I’ve also known a group of non-Chinese speaking parents who adopted Chinese kids and tried to get the kids to learn Chinese at Saturday schools so they could “keep in touch with their roots.” Like your friends’ case, most of these kids were babies when they left China and had no “roots” to speak of language wise. Another family with a Chinese child were over at a friends house during the holidays a couple of years ago. The girl was two years old when she left China and the parents said that her speech seemed pretty well developed for a girl of her age. She was six at that time we met her. My wife was in the bathroom when they came in the house. When my wife came back into the living room and the child saw a Chinese face, she became noticeably tense. When my wife and I spoke Chinese to her, the girl started to get quite upset. It seemed she had nothing but bad memories of Chinese people. There’s no telling what those kids go through.

11

I’m not certain from where you get this idea.[/quote]

It appears I’ve been getting the run-around from some of the adoption agencies I’ve been in contact with. Several of them have informed me that foreigners aren’t allowed to adopt in Taiwan, but as I’ve been challenging them on this I’m starting to get different stories. One of the agencies assured me it was Taiwanese law, but when pressed couldn’t document it. Another has now admitted it’s the agency’s policy, not Taiwan law.

I’m beginning to think what’s really going on is none of the agencies I’ve contacted has ever worked with a foreigner, and they’re just not certain what to do. If true, then I’ve never been happier to have been proved wrong.

Do you work for an adoption agency? If so, I’d love to discuss our situation with you privately. Any help or information you could provide would be wonderful.

Kaiwen Lee, Chiayi

12

My wife is under the impression that it’s next to impossible to bring a PRC baby into Taiwan, but she bases that on her brother’s experience. He’s a businessman in Shanghai, married to a PRC wife, with a son, and it’s a lot of work just to get his (blood) son into Taiwan. But I don’t know what Taiwanese law is on that point.

In any case, it looks like my initial information was in error, and that there is nothing in Taiwan law preventing me from adopting here, so we won’t need to go to the mainland.

As I understand things from the BCIS (American Bureau of Citizen and Immigration Services), the U.S. recognizes any adoption which is in accord with the local country’s adoption laws. If the PRC recognized the adoption, so would the US. Ditto for Taiwan.

From my reading of the BCIS, it’s even easier. If the child is legally mine (per local adoption laws), and is a minor at the time of entry into the US, then the paperwork can be completed at the border as we go in. But that’s too far off to worry about.

Kaiwen Lee, Chiayi

13

[quote=“KaiwenLee”]
My wife is under the impression that it’s next to impossible to bring a PRC baby into Taiwan, but she bases that on her brother’s experience. He’s a businessman in Shanghai, married to a PRC wife, with a son, and it’s a lot of work just to get his (blood) son into Taiwan. But I don’t know what Taiwanese law is on that point.[/quote]

That had completely slipped my mind and I can see how it could be a big problem getting a mainland kid over to Taiwan. I’ve heard of Taiwanese couples adopting mainland babies, but I’m not sure how they got them over to Taiwan. Good luck to you in which ever route you choose.

14

My girlfriend in the 1980’s (now my wife) and I investigated this during the mid-1980’s. Among other possibilities, we investigated the possibility of adopting an aboriginal child.

However, something which my girlfriend found out is that under Taiwan law, as a couple, you pretty much have to provide medical evidence that you are unable to produce offspring before the adoption agencies will seriously talk to you.

In reading through the content of this thread, I haven’t seen Kaiwen Lee offer any analysis on this point . . . . . . and while this may be quite a personal issue relating to the “health” of you and your wife, it is also very pertinent to the entire discussion . . . . . . certainly since we are dealing with “Chinese” adoption agencies, and the “Chinese” mentality.

15

Hello, Richard. Thanks for the feedback.

Yes, we are unable to conceive for medical reasons which will be easy to demonstrate should we need to.

Kaiwen Lee, Chiayi