Surrogacy Insights
The Assisted Reproduction Act in Taiwan currently prohibits all forms of surrogacy. Despite efforts to amend the laws, as recently as 2017, such attempts have faced opposition from women’s and children’s rights groups, leading to unsuccessful outcomes.
Same-sex marriage became legal in Taiwan in 2019, and gay couples can now adopt a child. However, same-sex couples and single women are banned from accessing procedures such as in vitro fertilization (IVF) or egg freezing in Taiwan.
Taiwan is considering legalizing surrogacy. For more information see our section on “Future Legal Developments” below.
Here is a summary of the Assisted Reproduction Act (ARA):
Recipient Couple:
Refers to a husband and wife receiving assisted reproduction, where the wife’s uterus can carry a fetus and give birth.
Competent Authority:
The Ministry of Health and Welfare (MOHW) oversees the Act.
Permits for Medical Institutions:
- Medical care institutions must obtain a permit from the MOHW to perform assisted reproduction or handle donated reproductive cells.
- Permits are valid for three years, with renewal applications required three months before expiration.
Testing and Assessments (Article 7):
Recipient couples and donors must undergo tests and assessments, including:
- General psychological and physiological state.
- Family disease history, including hereditary diseases within the fourth degree of kinship.
- Suspected hereditary or infectious diseases affecting birth ability.
- Infertility diagnosis or hereditary disease that could result in abnormal children. Exceptions can be approved by the competent authority.
- Other matters as designated by the competent authority.
Donor Criteria (Article 8):
Donors must meet the following criteria:
- Men aged 20-50 years, women aged 20-40 years.
- Must pass the tests and assessments as prescribed.
- Agree to donate without compensation.
- Have not donated reproductive cells before, or previous donations did not result in a live birth and are not stored.
Donor Record Keeping (Article 9):
Clinics must record donor information, including:
- Name, address, ID or passport number, date of birth, height, weight, blood type, skin color, hair color, ethnicity, donated items, quantity, and date.
Single Donor Limitation (Article 10):
- Reproductive cells from a single donor cannot be provided to multiple recipient couples simultaneously. The use of a donor’s cells ceases once a pregnancy is achieved.
Prohibition on Imported Reproductive Cells (Article 16):
The use of imported reproductive cells is prohibited.
Destruction of Reproductive Cells (Article 21):
Cells must be destroyed if:
- A live birth is achieved using the donated cells.
- Cells are preserved for over ten years.
- Cells are found unsuitable for assisted reproduction.
- The providers request destruction, die, or the cells are preserved over ten years (extension possible with written consent).
- Embryos are destroyed if the marriage is invalid, annulled, or the couple divorces or one spouse dies, preserved for over ten years, or the couple gives up assisted reproduction.
Data Submission:
Information about donors, intended parents and reproductive cycles must be submitted to a database managed by the competent authority.
Penalties (Article 31):
Engaging in the sale or brokering of reproductive cells or embryos for profit is punishable by imprisonment for up to two years, detention, and/or fines between NT$200,000 and NT$1 million.
Future Legal Developments
May 2024
In a significant move, Taiwan’s Ministry of Health and Welfare (MOHW) has proposed amendments to the Assisted Reproductive Act (ARA) that would make Taiwan the first country in Asia to legalize surrogacy. The draft, announced on May 14, 2024, aims to provide access to surrogacy for a diverse group, including infertile heterosexual couples, gay partners, single women, and lesbian partners. This initiative has sparked a heated debate, touching on ethical, social, and political aspects of surrogacy.
Proposed Amendments to the Assisted Reproductive Act
The proposed amendments to the ARA represent a groundbreaking shift in Taiwan’s approach to assisted reproductive technologies. Key provisions include:
- Eligibility: The amendments would allow infertile heterosexual couples, gay partners, single women, and lesbian partners to apply for surrogacy.
- Age and Health Requirements: Surrogates must be between 20 and 40 years old and have previous full-term pregnancy experience. Intended parents must include at least one spouse under the age of 50.
- Commercial Surrogacy: The draft strictly prohibits commercial surrogacy but allows for the payment of necessary expenses, requiring a special account for surrogacy fees.
The amendments have passed two hearings by the Health Promotion Administration (HPA) and one by the legislature. They will be open for public review until July 13, 2024, and require a third legislative reading before being sent to the Cabinet for review and potential implementation as law.
Political Influences on Surrogacy Legislation
To fully understand the upcoming surrogacy legislative changes, it is helpful to consider the politics at play behind the scenes. The proposed amendments have garnered support and opposition from various political parties and figures.
Democratic Progressive Party (DPP): The DPP, the ruling party, has declared the ARA amendment a top priority for 2024. Having won an unprecedented third presidential term, the DPP emphasizes the need to expand reproductive rights to single women and same-sex couples, arguing that these groups should not have to travel abroad for such services.
Kuomintang (KMT): The KMT, which narrowly lost the legislative majority, also supports surrogacy legalization. KMT Legislator Chen Ching-hui, an infertility specialist, views the amendments as forward-looking and beneficial for those who have long awaited the opportunity to have children.
Taiwan People’s Party (TPP): The TPP, led by former Taipei City Mayor Ko Wen-je, has made legalizing surrogacy a key pillar of its platform. TPP Legislator Chen Chao-tzu, a longtime surrogacy advocate, has been a vocal supporter of the proposed changes, emphasizing the need to move forward and not look back.
Other Parties: Smaller parties like the New Power Party (NPP), the Taiwan Obasang Political Equality Party (OBS), and the Green Party Taiwan (GPT) have also expressed support for expanding access to assisted reproductive technologies, including surrogacy, for single women and same-sex couples.
Despite broad support from major and minor parties, eight versions of the amendment were proposed, but none were passed. The current Health Minister, Jui-Yuan Hsueh, has set a one-year timeline to pass the amendment by the end of 2024.
Social and Ethical Considerations
The debate over surrogacy in Taiwan extends beyond politics, touching on deep-seated social and ethical concerns. Traditional views on family structures also influence the debate. Some argue that surrogacy, especially for same-sex couples and single women, infringes on societal norms and moral boundaries. This perspective often clashes with arguments based on human rights and the need to support diverse family structures.
The proposed changes to Taiwan’s Assisted Reproductive Act represent a significant step towards legalizing surrogacy and expanding access to assisted reproductive technologies. The political landscape is both supportive and contentious, with major parties recognizing the importance of reproductive rights while grappling with ethical and social implications. It is anticipated that the proposed amendments to the current ARA will become law by the end of 2024.
