JRF Gender Working Group Highlights | Controversy Surrounding the Draft Act on Gestational Surrogacy

In January 2026, the issue of gestational surrogacy sparked renewed debate in Taiwan. Opponents argue that commercial surrogacy under standardized contracts will inevitably undermine gender equality and result in exploitation, while proponents generally believe that comprehensive complementary measures can mitigate the associated legal risks. Touching upon sensitive personal memories while involving gender structures and medical technology, reproduction has never been an easy topic for rational discussion. However, whether the presupposition that "comprehensive legislation can prevent risks" holds true and how it might be achieved are premises that, regardless of one's stance, must be thoroughly understood in terms of the Legislative Yuan's current draft bills before we can properly respond to them.

Out of concern for legislative developments in the Legislative Yuan, the JRF has compiled relevant legislative trends and draft versions as follows:

Recent Legislative Trends

May 2024

In the revised draft version proposed by the Health Promotion Administration of the Ministry of Health and Welfare (MOHW), single women, female same-sex couples, and surrogacy were included within the scope of application. This revised draft bill only permits "altruistic surrogacy," prohibiting surrogate mothers from receiving any remuneration other than necessary expenses from the commissioning couple, and limits surrogacy to one time per surrogate mother to prevent surrogacy from becoming a commercial tool. In addition, the draft stipulates that surrogate mothers must pass economic, psychological, and family status evaluations before they can formally accept surrogacy commissions.

June 2024

LGBT+ organization views: Strengthening "family support assessments" specifically for single women and heterosexual couple configurations is discriminatory; a fully anonymous system fails to serve the best interests of the child; and vague regulations on surrogacy service agencies cannot guarantee altruism, etc.

July 2024

Awakening Foundation views: While supporting equal access to artificial reproduction for single women and female same-sex couples, surrogacy involves numerous human rights controversies that require deliberation, and it is recommended that the MOHW return the surrogacy draft for re-deliberation.

December 2024

The Health Promotion Administration announced that the legislative amendment will be decoupled from surrogacy, prioritizing provisions applicable to single women and female same-sex couples where a consensus has already been reached.

September 2025

The Taiwan People's Party (TPP) scheduled the Artificial Reproduction Act as a priority bill for the new legislative session. Legal issues to be addressed in the future involve "whether to permit artificial reproduction for single women," "whether to permit artificial reproduction for female same-sex spouses," and "whether to permit gestational surrogacy." While the first two generate little controversy, the greatest controversy lies in whether to permit gestational surrogacy.

December 2025

The Executive Yuan passed the partial amendment draft of the Artificial Reproduction Act, proposing to expand the scope of application of artificial reproduction from the original "infertile heterosexual couples" to single women and female same-sex spouses.

January 2026

The Social Welfare and Environmental Hygiene Committee and the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan jointly reviewed the draft Artificial Reproduction Act, with the focal point being whether to permit a surrogacy system.

Features and Content of Various Versions

Last edited: April 30, 2025

I. Main Legislative Amendment Stances

Proposer / Political Party	Eligibility for Artificial Reproduction	Gestational Surrogacy System
Fan Yun	Permitted (single women, female same-sex spouses)	Not involved
Wu Pei-yi	Permitted (single women, female same-sex spouses)	Not involved
Lin Shu-fen	Permitted (single women, female same-sex spouses) + germ cell storage regulations	Not involved
New Power Party Caucus	Permitted (single women, female same-sex spouses)	Not involved
Kuo Yu-ching	Permitted (single women, female same-sex spouses)	Not involved
Hsieh Yi-feng	Permitted only for heterosexual spouses	Establish a complete system
Wang Yu-min	Permitted (single women, same-sex spouses)	Establish a complete system
Kuomintang Caucus	No relaxation of regulations on artificial reproduction recipients	Establish a system
Lin Yueh-chin	Permitted (unmarried women and female same-sex spouses)	Not supported
Lin Chu-yin	Permitted (same-sex spouses)	Not supported
Chen Pei-yu	Permitted (same-sex spouses and unmarried women)	Not supported
Huang Jie	Permitted (same-sex spouses, unmarried women, transgender men, intersex individuals with a uterus, non-binary individuals)	Not supported

II. Details of Provisions and Institutional Amendments

(1) Relaxation of Artificial Reproduction Recipient Eligibility

• Most proposers (Fan Yun, Wu Pei-yi, Lin Shu-fen, Kuo Yu-ching, etc.): Expand the recipients of artificial reproduction from heterosexual couples to single women and female same-sex spouses, with provisions mostly setting "having a reproductive uterus and available eggs" as a prerequisite condition.
  
• Similarities and differences in detailed provisions:
  • Fan Yun, Lin Shu-fen: Delete the exceptional restrictions in Article 11; same-sex spouses may use eggs from others (Article 13）
    
  • Kuo Yu-ching: Support same-sex spouses using eggs from others (Article 13)
    

(2) Regulations on Artificial Reproduction and Frozen Cell Institutions (Lin Shu-fen Version)

• Germ cell freezing institutions must obtain a permit and are prohibited from performing storage for non-donation purposes on individuals under 18 years of age.
• Prior to execution, detailed explanations of implementation methods, side effects, and fees must be provided, and a written contract must be signed.
• Institutions closing down must submit a follow-up processing plan one year in advance.
• Corresponding amendments to penalty provisions (Articles 33 and 34).
  

(3) Right to Know for Artificial Reproduction Children

• Granting children the right to know: Wang Yu-min, Lin Yueh-chin, Chen Pei-yu, Huang Jie.
  

III. Comparison of Gestational Surrogacy System Contents

(Based primarily on the proposals by Hsieh Yi-feng and Wang Yu-min)

Item	Hsieh Yi-feng Version	Wang Yu-min Version
Whether Surrogacy is Permitted	Yes (restricted to heterosexual spouses)	Yes (couples as a unit)
Surrogacy Format	Gestational surrogacy, surrogate's eggs cannot be used	Gestational surrogacy, surrogate's eggs cannot be used
Surrogacy Agency	Requires competent authority permit, established as a juristic person	Same as left
Surrogate Qualifications	Hold nationality, adult, childbirth experience, limited to twice	Same as left, plus professional evaluation
Contract Restrictions	Notarization, privacy, bodily autonomy, visitation rights may be stipulated, insurance guaranteed	Same as left
Surrogacy Remuneration	Non-profit, compensation may be provided (no statutory cap)	Fixed compensation + care expenses
Other	If spouses pass away before the child's birth, the surrogate may adopt	Not mentioned

Four Controversies in the TPP Draft Bill

In particular, after the TPP scheduled the Artificial Reproduction Act as a priority bill for the new legislative session in September 2025, it has been the most proactive in seeking to pass the gestational surrogacy system. We have compiled the four major controversies in the TPP draft bill (hereinafter the Draft) as follows:

Last edited: June 10, 2026

Controversy 1: How should age limits for recipient spouses be regulated to safeguard the quality of child care?

Relevant Draft Provisions

The TPP Caucus added an age limit in its revised motion provisions—absent in the original first-reading draft—requiring that "at least one spouse among the recipients must be under the age of 50" to commission surrogacy reproduction. The TPP Caucus stated in its statement of reasons for the amendment: "The age limit references the age upper limit for artificial reproduction recipients proposed by the European Society of Human Reproduction and Embryology based on child-rearing needs, as well as our country's adoption practice experience; therefore, it stipulates that at least one of the commissioning spouses must be under the age of 50." Simply put, this legislative logic essentially considers the age gap between adoptive parents and children to ensure that parents have sufficient physical strength and lifespan to accompany their children as they grow. To elaborate, although the Civil Code does not rigidly prescribe an upper age limit for adoptive parents, court practice still reviews the age gap between adoptive parents and children; if the gap is too wide, the adoptive parents' adoption application will be dismissed. Thus, setting a rigid threshold of "at least one spouse under 50" in the Artificial Reproduction Act aims to operationalize the review standard of "tying age to parenting quality."

Controversial Points

Establishing an age threshold aims to safeguard the best interests of the child, preventing commissioning parties from facing risks of death and disability due to advanced age, which would burden children with heavy rearing responsibilities. However, loopholes in this system still pose certain problems—for instance, assuming one commissioning spouse is 49 and the other is 70, while compliant with the draft provisions, can they actually provide a stable parenting environment?

If an age threshold is set for parenting quality, the upper limit could also be considerately lowered to 45 years old to better align with the "requirement for the length of companionship" in adoption practice; or a restriction on the "sum of the couple's ages" could be adopted (such as a combined total not exceeding 90 or 100 years) to ensure that the family has a stable primary caregiver with long-term care capabilities. Whether the current age regulations for recipient spouses in the draft can achieve the goal stated in the legislative reasoning of "safeguarding the duration and quality of time spent accompanying children" is open to further consideration.

Controversy 2: If the recipient spouses divorce before the surrogate child is born, who will support the child?

Relevant Draft Provisions

Article 18-9 of the draft fictionalizes the surrogate child as a legitimate child born in wedlock to the recipient spouses, and paragraph 5 excludes the application of relevant Civil Code systems regarding the presumption of legitimacy in wedlock, thereby eliminating the legal parent-child relationship between the surrogate mother and the surrogate child.

Controversial Points

However, paragraph 4 of Article 18-9 merely stipulates that when the marriage of the recipient spouses is invalid, the provisions of the Civil Code concerning agreements on the parental rights over minor children upon divorce may apply mutatis mutandis, but it fails to explicitly regulate "the question of who shall support the surrogate child if the recipient spouses divorce before the child is born." Observing that paragraph 2 adopts the theory of a conditions subsequent, limiting application to cases where the child is not stillborn, whether Article 1055 of the Civil Code can be directly applied remains to be clarified.

Controversy 3: Should surrogate mothers be granted a "mandatory visitation right"?

Relevant Draft Provisions

To safeguard the rights of surrogate mothers and surrogate children, the TPP added a "mandatory visitation right for surrogate mothers." As seen in subparagraph 2 of paragraph 1 of Article 18-4 of the TPP's revised motion draft version, the contents of the surrogacy contract should guarantee that "the surrogate mother may visit the surrogate child within two years after delivery." In other words, the surrogate mother holds a mandatory visitation right, and the recipient spouses generally have no right of refusal. In this regard, the TPP's revised motion took into consideration that surrogate mothers might experience separation anxiety after delivering the child; to protect the surrogate mother's mental health, such visitation rights are conferred upon them.

Controversial Points

Visitation rights (rights of access and interaction) under the Civil Code are established for the purpose of safeguarding the best interests of the child, maintaining emotional interaction between children and parents, and preventing minor children's physical and mental health development from being affected by parental separation concerning the attribution and exercise of parental authority. Therefore, under the premise that the draft has already excluded the legal parent-child relationship between the surrogate mother and the surrogate child, whether compulsorily retaining the surrogate mother's visitation rights naturally aligns with the child's best interests—especially given that post-divorce visitation rights in ordinary domestic relations cases are already difficult to execute in practice—seems to require more complementary thinking regarding execution. In particular, the implementation of access and interaction involves the child's living stability, an issue requiring more professional evaluation.

Controversy 4 (and the most complex one): What legal risks exist in surrogacy contracts?

Relevant Draft Provisions

Recipient spouses commissioning surrogacy must handle it through surrogacy service agencies, which may charge necessary fees. The system involves three legal relationships: ① Recipient spouses and surrogate mother (mandate contract); ② Recipient spouses and surrogacy service agency (brokerage contract); ③ Surrogate mother and surrogacy service agency (unregulated in the draft).

Controversial Points

(1) The legal relationship between the surrogate mother and the surrogacy service agency is unregulated in the draft—whether the agency may pay or charge fees to the surrogate mother lacks regulation, which will impact the rights and interests of surrogate mothers.

Regarding the legal relationship between recipient spouses and the surrogate mother, it is principally a mandate contract for surrogacy. Although the draft stipulates that the contents of the surrogacy contract should safeguard the relevant rights and interests of the surrogate mother—including ensuring the surrogate mother's space for autonomous decision-making regarding her health and bodily-related matters during the surrogacy period—it further stipulates that during the surrogate mother's pregnancy, recipient spouses may not terminate the surrogacy contract without the application of arbitrary termination of mandates under the Civil Code. However, as the mandatary, if matters do not involve health and bodily-related issues, must the surrogate mother still follow the mandator's instructions? To what extent? Whether the related restrictions or complementary measures are sufficient or suitable to be protected through standardized contracts remains questionable.

According to the contents of the revised motion draft, under the brokerage contract established between recipient spouses and the surrogacy service agency, the surrogacy service agency may principally charge necessary fees to the recipient spouses. Since the surrogacy contract is a gratuitous contract, aside from necessary fees, the surrogacy service agency may not charge remuneration to the recipient spouses, nor may the recipient spouses provide remuneration to the surrogate mother. However, it must be noted that the legal relationship established between the surrogate mother and the surrogacy service agency appears unregulated in the TPP's draft design. In other words, whether the surrogacy service agency may provide remuneration to the surrogate mother, or whether it may charge necessary fees to the surrogate mother, and what legal relationship is involved, are nowhere to be found in the revised motion draft, which will inevitably impact the relevant rights and interests of surrogate mothers after implementation.

(2) Informed consent in standardized contracts is reduced to a mere formality—amid information asymmetry, surrogate mothers are often unable to truly evaluate surrogacy risks (such as preeclampsia, postpartum hemorrhage, multiple pregnancy hazards, etc.), and Taiwan also lacks domestic data.

All tripartite contracts are handled via standardized contracts. Although it is stipulated that the competent authority shall announce items that should be recorded and explicitly provides that if ambiguities arise in standardized contract clauses, they shall be interpreted in favor of the surrogate mother, the inherent risk of information asymmetry in standardized contracts remains. When signing surrogacy contracts, surrogate mothers often fall into formal informed consent; that is, signing consent forms without fully understanding and grasping the risks of surrogacy. Some international studies point out that in countries adopting surrogacy systems, surrogates cannot accurately assess the true risks of the surrogacy system. Thus, in the absence of domestic data in Taiwan, how to enable surrogates to effectively evaluate and understand the health risks that surrogacy technology may entail—such as side effects generated by surrogacy technology (preeclampsia, postpartum hemorrhage probability, etc.) and related hazards and trauma from implanting multiple embryos to increase success rates—certainly warrants deliberation, review, and consideration.

(3) The issue of blank delegation—core safeguards such as specific items for risk notification, qualifications of professional consulting personnel, and evaluation standards should not be prescribed solely by standardized contracts or administrative orders, but should be comprehensively regulated in the parent act.

Many important matters and critical details in the current draft adopt a legislative design of blank delegation, including personnel qualifications, scope of content, and evaluation standards for professional consultation, all of which are to be prescribed through administrative orders. However, core safeguard items and specific items for risk notification (such as local data on preeclampsia and postpartum hemorrhage probability) should arguably be comprehensively regulated in the parent act rather than relying solely on standardized contracts or administrative orders. Particularly when compared to the practices of Australia and New Zealand/UK, the most crucial part of the entire surrogacy system is the rigorous evaluation and consultation phases in the early stages, allowing both parties to fully understand the risks of the pregnancy process. The current draft only authorizes subordinate regulations to handle this, leaving it unclear how cross-professional resources will complementarily assist recipient spouses and surrogate mothers.

(4) Other questions: For instance, according to Article 18-4 of the draft, while there are protections for the surrogate mother's right to terminate surrogacy if the fetus has abnormalities or if the surrogate exercises her bodily autonomy, if the situation is reversed—where the recipient spouses wish to terminate, but the surrogate mother wants to carry the child to term—whether the legal relationship requires special consideration is likewise unaddressed.

References

• Legislative Proposals by Various Legislators: Document Link
  
• Translation and Compilation of Artificial Reproduction Acts of Virginia, New Jersey, and Washington: Document Link
  
• Chinese Translation of the UN Report "The different manifestations of violence against women and girls in the context of surrogacy": Document Link
  

Thanks to the volunteers of the JRF Gender Working Group for their assistance in compilation: Lin Chengqing, Chen Yiqiao, Hsieh Yu-hsiu, Attorney Lin Yanyu, Attorney Huang Sining, Attorney Lin Junyi, Attorney Chang Kaiyu, Attorney Lin Yirong, Attorney Lin Yunyan.