Whether Surrogacy Contracts are Invalid Because of Public Policy or Morals under the Civil Code in Taiwan
This article explores whether surrogacy contracts can be valid under the Civil Code in Taiwan. Because of strong disagreement over surrogacy in Taiwanese society, the Assisted Reproduction Act (ARA) does not clearly ban surrogacy but stipulates that the wife in the recipient couple must carry and give birth to the child herself. Such a provision indirectly limits surrogacy in Taiwan. Without an imperative or prohibitive provision regarding surrogacy, related contracts are not considered invalid under Article 71 of the Civil Code. However, surrogacy contracts with payments may be considered invalid by courts under Article 72 of the Civil Code because such agreements imply that lives can be purchased and that a woman’s uterus can be rented; these implications may violate public policy and morals. Additionally, if physicians violate an ARA provision that was enacted to protect patients and such behavior causes injury (e.g., the implantation of more than five embryos at a time, violates subparagraph 6, article 16 of the ARA, which was enacted for patient protection), they must compensate for injury in accordance with Paragraph 2, Article 184 of the Civil Code.